ANN MARIE STAIB AND HER HUSBAND, DANIEL STAIB, APPELLANTS,
v.
FERRARI, INC., A FLORIDA CORPORATION D/B/A FERRARI'S PIZZERIA AND ITALIAN RESTAURANT, APPELLEE
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The appellate court affirmed the trial court's order granting a new trial, finding no abuse of discretion.
[1] A trial court's order granting a new trial is reviewed for abuse of discretion, and will not be disturbed unless a clear showing of abuse is present.
[2] A jury's confusion in filling out a verdict form, leading to inconsistent findings, can be a valid ground for granting a new trial.
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Join FLexlaw to unlock all legal intelligencePlaintiffs ordered pizza, and one plaintiff found a metallic substance, claiming psychological scarring. The jury initially returned inconsistent verd…
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HENDRY, Judge.
This is an appeal by plaintiffs below from an order of the Circuit Court of Dade County, Florida granting defendant a new trial. Defendant, Ferrari, has cross-appealed. We affirm the order of new trial.
Briefly, the evidence at trial showed that the Staibs, plaintiffs in the trial court, ordered a pizza from the defendant’s restaurant to be delivered to their home. As Mrs. Staib was eating the pizza, she bit down upon a small metallic substance. Subsequent X-rays disclosed that she had swallowed a tiny piece of the metal. The plaintiffs admitted that Mrs. Staib had no physical complications beyond a small cut in her mouth, but claimed that she suffered permanent psychological scarring and could no longer eat food prepared by anyone other than herself.
The case was tried on theories of negligence and breach of warranty. At the conclusion of the trial, the court submitted a special interrogatory verdict form to the jury and explained the procedure to be followed in answering the questions. After deliberations, the jury returned a verdict finding that there was no negligence or breach of warranty on behalf of the defendant, but nevertheless assessing damages in favor of the plaintiffs for $114,000, the approximate figure requested by plaintiffs’ counsel during closing argument. After some discussion and confusion, the trial judge gave the jury a fresh verdict form and the jury returned to the jury room. Soon thereafter the jury returned a verdict for plaintiffs in the amount of $114,000, finding the defendant liable for negligence and breach of warranty.
The court below granted the defendant’s motion for a new trial as to both liability and damages. The salient findings of the court leading to the grant of a new trial were: (1) the jury was confused about the issues of the case and was unable to correctly fill out the verdict form; (2) the size of the verdict was grossly excessive and shocked the conscience of the court; (3) the court erred in charging the jury on the doctrine of res ipsa loquitur; (4) the court erred in charging the jury on permanent injury, and allowing into evidence plaintiffs’ mortality tables; and (5) the court erred in failing to direct a mistrial due to the mention of certain inadmissible, irrelevant, and prejudicial matters.1 From this order the plaintiffs and the defendant have appealed, and cross-appealed, respectively.
On review, our inquiry is limited to the narrow issue of whether the trial judge abused his discretion in granting the motion for a new trial.
When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, . . . who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, ... the ruling should not be disturbed in the absence of a clear showing that it has been abused ....
Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145, 146 (Fla. 1980); Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959); Westbrook v. All Points, Inc., 384 So. 2d 973, 974 (Fla.3d DCA 1980).
The Florida Supreme Court has outlined the test to be applied by appellate courts in determining whether there has been an abuse of discretion by the court below:
If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.
Baptist Memorial Hospital, Inc., supra, 384 So. 2d at 146.
Thus, the test is one of reasonableness, and in this case the record amply supports the trial judge’s finding that the jury was confused and unable to properly fill out the verdict form. In fact, the jury reached two completely different results in the span of five minutes, first finding the defendant not liable under either theory, and then finding liability under both theories.
Additionally, the judge below found that the size of the verdict was so excessive that it shocked the conscience of the court. The Florida Supreme Court has held that the excessiveness of a verdict is a valid reason for granting a new trial. Bennett v. Jacksonville Expressway Authority, 131 So. 2d 740 (Fla. 1961); Cloud v. Fallís, supra. Having only the bare record before us, it is not for this court to second guess the trial court’s wisdom as to the necessity for a new trial:
Mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. The trial judge “[is] in a much better position than an appellate court to pass on the ultimate correctness of the jury’s verdict.”
Castlewood International Corp. v. LaFleur, 322 So. 2d 520, 522 (Fla. 1975) (citation omitted). Moreover, a stronger showing is required to reverse an order allowing a new trial, as here, than to reverse an order denying one. Pyms v. Meranda, 98 So. 2d 341 (Fla. 1957).
Upon examination of the record and briefs, we conclude that the plaintiffs have failed to present a clear showing that the trial court abused its discretion in granting a new trial. We are of the opinion that reasonable men could differ as to the propriety of the action taken. We agree with the trial court that under the particular facts of this case, the res ipsa loquitur instruction should not have been given. Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339 (Fla. 1978).
For the foregoing reasons, the order appealed is affirmed. We have considered the cross-appeal filed in this action and find it to be without merit.
Affirmed.
. In granting a new trial, the court below properly followed the dictates of Wackenhut v. Canty, 359 So. 2d 430 (Fla. 1978), which held that such orders should articulate the reaso'ns for the grant so as to facilitate appellate review in determining whether judicial discretion has been abused. Here, the judge specifically stated several distinct reasons for the grant of a new trial.
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Citator
Cited By (11 total)
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Scandinavian World Cruises (bahamas) v. Cronin, 509 So. 2d 1277 (Fla. 3d DCA 1987)…g of an abuse of discretion. Florida First Nat. Bank of Jacksonville v. Dent, 404 So. 2d 1123 (Fla. 1st DCA), dismissed, 411 So. 2d 381 (Fla. 1981); Salkay v. State Farm Mut. Auto. Ins. Co., 398 So. 2d 916 (Fla. 3d DCA 1981); Staib v. Ferrari, Inc., 391 So. 2d 295 (Fla. 3d DCA 1980). After a careful review of the record and evidence, we conclude that the trial court did not abuse its discretion. With regard to Scandinavian’s contention that the plaintiff was comparatively negligent, the jury’s finding in th…
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Lopez v. Isidore Cohen and Miriam Cohen, 406 So. 2d 1253 (Fla. 4th DCA 1981)…opriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. See Akers v. Palm Beach Newspapers, Inc., et al., 386 So. 2d 282 (Fla. 4th DCA 1980); Staib v. Ferrari, Inc., 391 So. 2d 295 (Fla. 3rd DCA 1980); Equitable Life Assur. Soc. v. Fairbanks, 400 So. 2d 550 (Fla. 4th DCA 1981). In arriving at its conclusion above to grant the motion, the Court noted: a. The jury in this ease apportioned negligence between Omar Lopez and the…
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Salazar v. Santos (Harry) & Co., Inc., 537 So. 2d 1048 (Fla. 3d DCA 1989)…based on the following analysis. On review, we must determine whether the trial judge abused his discretion in issuing the order which Salazar now appeals. Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145 (Fla.1980); Staib v. Ferrari, Inc., 391 So. 2d 295 (Fla. 3d DCA 1980). We are mindful that the trial judge has broad discretion in such matters because, based on his observation of the behavior of the witnesses who testified, he is in the best position to understand fully the processes employed by t…
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
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)
- Baptist Mem'l Hosp., Inc. v. Bell, 384 So. 2d 145 (Fla. 1980)
- Castlewood Int'l Corp. v. LaFLEUR, 322 So. 2d 520 (Fla. 1975)
- Goodyear Tire & Rubber Co. & Travelers Ins. Co. v. Hughes Supply, Inc., 358 So. 2d 1339 (Fla. 1978)
- Pyms v. Meranda, 98 So. 2d 341 (Fla. 1957)
- In re Florida Appellate Rules, 131 So. 2d 740 (Fla. 1961)
- Bennett v. Jacksonville Expressway Auth., 131 So. 2d 740 (Fla. 1961)
- Westbrook v. ALL Points, 384 So. 2d 973 (Fla. 3d DCA 1980)