The Week in Torts – Cases from the Week of February 7, 2020

Big Injustice, But Not Enough Under Murphy.

FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 5
CASES FROM THE WEEK FEBRUARY 7, 2020

TRIAL COURT ERRED IN ENTERING DIRECTED VERDICT ON LIABILITY AGAINST DEFENDANT AFTER A DEFENSE VERDICT – EVEN THOUGH EVIDENCE ESTABLISHED DEFENDANT CONDUCTED JAIL TOUR NEGLIGENTLY AND THERE WAS NO COMPARATIVE NEGLIGENCE, JURY STILL COULD HAVE PROPERLY CONCLUDED DEFENDANT’S NEGLIGENCE WAS NOT THE LEGAL CAUSE OF LOSS INJURY OR DAMAGE—PLAINTIFF ALSO FAILED TO PRESERVE ISSUES OF DEFENSE COUNSEL’S MISCONDUCT IN HIS CLEARLY IMPROPER CLOSING ARGUMENT.

Orange County, Florida v. Ferguson, 45 Fla. L Weekly D231 (Fla. 5 ^th DCA January 31, 2020):

A young man sued Orange County for its negligence after he was sexually abused by a jail inmate while participating in a court ordered jail tour as part of a juvenile diversion program. The jury returned a defense verdict. Subsequently, the trial court entered an order directing a verdict on liability for the plaintiff, granting a new trial, and imposing sanctions against the County’s attorney.

On a de novo review, the court believed that the jury could have found that there was no negligence on the part of the County which was the legal cause of loss injury or damage to the plaintiff. While the court agreed that the evidence did establish that the County conducted the jail tour in a negligent manner, and that there was no evidence that would support any comparative negligence, the County correctly argued that the jury still could have found no causation.

The plaintiff asserted that he suffered from PTSD as a result of these events. However, there was also evidence that the plaintiff did not suffer, and also that the negligence did not cause the condition even if he did.

The trial court had also granted the plaintiff’s motion for mistrial on the ground that the County’s attorney willfully violated orders in limine, thereby deceiving the jury and influencing it with considerations outside the record.

The attorney did violate two separate orders, one displaying an unredacted copy of a psychological treatment note in closing argument, impermissibly stating that the plaintiff’s participation in the jail tour was “pursuant to a restorative justice program as a result of “stealing offense” (only the redacted copy was supposed to be admitted into evidence). The other comment suggested that the United States Army (that currently employed the plaintiff) “takes care of its own,” or and would “if the plaintiff needed therapy in the future.”

Despite these violations of the trial court’s orders in limine, the plaintiff never moved for a mistrial. As a result, defense counsel’s misconduct was subject to the fundamental error analysis set forth in Murphy v. International Robotic Systems, Inc.

To receive a new trial based upon unobjected to arguments, a party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial, that the public’s interest in our system of justice requires a new trial. The court observed that the standard set forth in Murphy is a high one to meet.

Notwithstanding that defense counsel’s arguments were clearly improper, the court said it could not conclude that they were “incurable,” or so damaged the fairness of the trial, that the public’s interest in the system of justice required a new trial. As such, the court reversed and remanded for entry of final judgment in accordance with the jury’s defense verdict.

COURT SHOULD HAVE AWARDED COSTS AFTER A VOLUNTARY DISMISSAL AND A TIMELY FILING OF A MOTION FOR COSTS.

Aguilo v. American Sales and Management, 45 Fla. L Weekly D220 (Fla. 3^rd DCA January 29, 2020):

When a party timely moves for prevailing party costs after a voluntary dismissal (that did not indicate it was made “without” prejudice), the trial court must award costs under the rule, even if the moving party fails to specifically mention the motion is being made pursuant to Rule 1.420(d).