HERCULES, INCORPORATED, APPELLANT,
v.
OSVALDO COTO, A MINOR, BY AND THROUGH HIS PARENTS AND NATURAL GUARDIANS, JOSE COTO AND NIEVES COTO, AND JOSE COTO AND NIEVES COTO, INDIVIDUALLY, APPELLEES
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The court held that the trial court did not err in failing to direct a verdict and that counsel's arguments were not so prejudicial as to warrant a new trial.
[1] A trial court should not direct a verdict unless there is no evidence to support a jury finding for the party against whom the verdict is sought.
[2] A motion for a new trial based on prejudicial argument is addressed to the sound discretion of the court.
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Join FLexlaw to unlock all legal intelligenceA minor was severely injured when a blasting cap he found exploded. The product allegedly lacked warnings and was defectively manufactured or negligen…
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PER CURIAM.
Plaintiff/appellee, a minor, brought this action for damages suffered when a blasting cap which he found, exploded, causing him severe injuries. It was alleged that the product, containing no warning that it was a dangerous explosive, was defectively manufactured, or that the product was negligently distributed with no warning, or was negligently distributed with the warning printed in an ink which could not withstand conditions to which the product would ordinarily be exposed.
By special interrogatory verdict, a jury found appellant liable on theories of product liability and negligence.
The issues presented by appellant are (1) whether the trial court erred in failing to direct a verdict on liability where it was uncontested that the product was in a substantially changed condition when it came into plaintiff’s possession and where there was no evidence as to the history of the product up to the accident, and (2) whether questions and arguments by plaintiff’s counsel were so prejudicial as to warrant a new trial.
There was some evidence presented by plaintiff to support the jury verdict on theories of product liability and negligence, which if believed by the jury, could sustain the verdict. It is improper for a trial judge to direct a verdict unless there is no evidence to support a jury finding for the party against whom the verdict is sought. Marcano v. Puhalovich, 362 So. 2d 439 (Fla. 4th DCA), appeal dismissed, 365 So. 2d 714 (Fla.1978).
We have reviewed the comments and arguments which appellants allege to be prejudicial and find them not totally improper and irrelevant to the issues in the cause. More importantly, a motion for new trial based on prejudicial argument is addressed to the sound discretion of the court, and where, as here, no contemporaneous objection or motion is made, the matter is not preserved for review. Cf. Eastern Steamship Lines, Inc. v. Martial, 380 So. 2d 1070 (Fla. 3d DCA), cert. denied, 388 So. 2d 1115 (Fla.1980).
Affirmed.
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Sears v. McKENZIE, 502 So. 2d 940 (Fla. 3d DCA 1987)…th DCA 1983). In the instant case, there was some evidence presented by the plaintiff to support the jury verdict on theories of strict liability and negligence, which, if believed by the jury, could sustain the verdict. See Hercules, Inc. v. Coto, 434 So. 2d 4 (Fla. 3d DCA 1983) (in products liability suit brought by minor who was injured when a blasting cap which he found exploded, evidence sustained jury’s verdict for plaintiff on theories of product liability and negligence). According to the testimon…
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Division OF Corrections v. Mrs. H.W. Wynn, 438 So. 2d 446 (Fla. 1st DCA 1983)…. Mallory v. Edgar, 128 Fla. 812, 175 So. 863 (1937); Wright & Ford Millworks, Inc. v. Long, 412 So. 2d 892 (Fla. 5th DCA 1982). Unfortunately, as in Murray-Ohio Mfg. Co. v. Patterson, 385 So. 2d 1035 (Fla. 5th DCA 1980), and Hercules, Inc. v. Coto, 434 So. 2d 4 (Fla. 3rd DCA 1983), there was no objection preserving this error for appellate review. Appellant has failed to demonstrate that the comments made in this case rise to the level of fundamental error. The judgment appealed is AFFIRMED. JOANOS, J.,…
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The City OF Miami v. Bailey & Dawes, 453 So. 2d 187 (Fla. 3d DCA 1984)…t of the points raised on this appeal from the consequent judgment shows that the defendant city has failed to demonstrate that harmful error in fact occurred or that it preserved its present contentions to that effect below. Hercules, Inc. v. Coto, 434 So. 2d 4 (Fla. 3d DCA 1983), rev. denied, 441 So. 2d 632 (Fla.1983); Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319 (Fla. 3d DCA 1983); Stowe v. Walker Builders Supply, Inc., 431 So. 2d 180 (Fla. 2d DCA 1983); Metropolitan Dade County v. Brill, 414 So. 2d 6…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E. S.S. Lines, Inc. v. Lamy Martial, 380 So. 2d 1070 (Fla. 3d DCA 1980)
- Marcano v. Ante Puhalovich, 362 So. 2d 439 (Fla. 4th DCA 1978)