THE MURRAY-OHIO MANUFACTURING COMPANY, A FOREIGN CORPORATION, AND CALIFORNIA UNION INSURANCE COMPANY, A FOREIGN CORPORATION, AND EMPLOYERS REINSURANCE CORPORATION, A FOREIGN CORPORATION, APPELLANTS,
v.
ERNEST B. PATTERSON AND JUNE M. PATTERSON, APPELLEES
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Affirmed strict liability judgment against lawn tractor manufacturer where defense counsel's failure to timely object to improper rebuttal argument referencing Ford Pinto and Firestone 500 cases waived the issue for appeal.
A trial court's judgment in a strict liability case is affirmed where defense counsel fails to make a contemporaneous objection to improper rebuttal argument and raises the issue only after jury instructions, thereby waiving appellate review.
[1] A trial court's judgment is affirmed where defense counsel fails to make a contemporaneous objection to improper rebuttal argument and raises the issue only after jury in…
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Join FLexlaw to unlock all legal intelligenceThe manufacturer of an allegedly defective lawn tractor was found liable in a strict liability case after a jury verdict against it. During plaintiffs…
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SCHWARTZ, ALAN R., Associate Judge.
The defendant below, the manufacturer of an allegedly defective lawn tractor, appeals from a judgment rendered against it upon an adverse jury verdict in a strict liability case. The only point which gives us pause concerns the rebuttal portion of the plaintiffs’ final argument, in which counsel improperly referred to the Ford Pinto and Firestone 500 cases notwithstanding the fact that the trial judge had twice sustained objections to such references during the course of the trial. While we certainly do not approve of this conduct, the record shows that defense counsel made no contemporaneous objections to the argument at the time it was made and raised the issue below only in a motion for mistrial after the jury had been instructed and had retired to consider its verdict. Since the comment, taken in context, was not so inflammatory as to destroy the defendants’ right to a fair trial and thus to constitute fundamental error, it is apparent that the mistrial motion came far too late to preserve the issue for review. See State v. Cumbie, 380 So. 2d 1031 (Fla.1980); Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); Bishop v. Watson, 367 So. 2d 1073 (Fla.3d DCA 1979); Sears, Roebuck & Go. v. McAfoos, 303 So. 2d 336 (Fla.3d DCA 1974); H. I. Holding Co. v. Dade County, 129 So. 2d 693 (Fla.3d DCA 1961). We find no other error, and the judgment below is therefore
AFFIRMED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.
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Cited By (11 total)
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ED Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)…tutes a fundamental error, a motion for a mistrial must be made “at the time the improper comment was made.” Clark v. State, 363 So. 2d 331 (Fla.1978); See also State v. Cumbie, 380 So. 2d 1031 (Fla.1980); Murray-Ohio Manufacturing Co. v. Patterson, 385 So. 2d 1035 (Fla. 5th DCA 1980); Sears Roebuck & Co. v. Jackson, 433 So. 2d [*911] 1319 (Fla. 3d DCA 1983). However to avoid interruption in the continuity of the closing argument and more plainly to afford defendant [or plaintiff] an opportunity to evaluate th…
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Sears Roebuck & Co. v. Arlee Jackson and Mugge Rivers, 433 So. 2d 1319 (Fla. 3d DCA 1983)…1916) (same); Omer Corporation v. Duke, 211 So. 2d 48 (Fla. 3d DCA 1968) (same); Park v. Belford Trucking Co., 165 So. 2d 819 (Fla. 3d DCA 1964), cert. dismissed, 174 So. 2d 398 (Fla. 1965) (same). Cf. Murray-Ohio Manufacturing Company v. Patterson, 385 So. 2d 1035 (Fla. 5th DCA 1980) (mistrial motion directed to rebuttal portion of plaintiff’s final argument made after jury retired to deliberate does not preserve for appeal issue of improper argument where argument not so inflammatory as to constitute fundame…
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B.G. Wasden v. Seaboard Coast Line R.R. Co., 474 So. 2d 825 (Fla. 2d DCA 1985)…se. The same conclusion, that a motion for mistrial raised only after the jury has been instructed and has begun deliberations is too late to preserve the issue for appeal, was reached in the civil case of Murray-Ohio Manufacturing Co. v. Patterson, 385 So. 2d 1035 (Fla. 5th DCA 1980). While the supreme court in Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908 (Fla.1985) has approved a trial judge withholding ruling on a motion for mistrial until after the jury has returned a verdict, the court refused to rem…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Cumbie, 380 So. 2d 1031 (Fla. 1980)
- Baggett v. Davis, 124 Fla. 701 (Fla. 1936)
- H. I. Holding Co. v. Dade Cnty., 129 So. 2d 693 (Fla. 3d DCA 1961)
- Bishop v. Watson, 367 So. 2d 1073 (Fla. 3d DCA 1979)
- Sears v. McAFOOS, 303 So. 2d 336 (Fla. 3d DCA 1974)