Department of Agriculture & Consumer Services v. Shuler Ltd. Partnership

PER CURIAM.

This is an appeal from a judgment based on a jury verdict. The Division of Forestry conducted a controlled burn of state property in Franklin County but before the fire was completely extinguished an ember from the smoldering fire drifted onto the appellee’s property destroying 835 acres of trees. The jury based its verdict for the appellees on negligence, negligence per se, gross negligence and a violation of section 590.13, Florida Statutes.

One of the arguments on appeal is that the evidence was insufficient to support the jury’s finding of gross negligence. We conclude that a jury could reasonably find the appellants were grossly negligent, based on expert testimony and other evidence presented by the appel-lees at trial. Whether negligence is ordinary or gross is a question to be resolved by the jury. See Courtney v. Florida Transformer, Inc., 549 So.2d 1061 (Fla. 1st DCA 1989). If there is some evidence from which a jury could make a finding of gross negligence, and in this case there is, the appellate court must affirm. Our resolution of this issue makes it unnecessary to consider the other principal arguments for reversal discussed in the dissent.

For these reasons, we conclude that the appellants have failed to demonstrate the existence of reversible error.

Affirmed.

PADOVANO and MARSTILLER, JJ., concur. MAKAR, J., dissents with opinion.