ELSIE GALLAGHER, ET AL, APPELLANTS,
v.
L.K. RESTAURANT & MOTELS, INC., ETC., APPELLEE
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A customer sued a restaurant for food poisoning after eating dinner and becoming ill. The trial court allowed the restaurant to reopen its case to introduce hospital records, the jury found for the restaurant, and the customer appealed the denial of her motion for new trial. The appellate court affirmed, rejecting the customer's arguments that the trial court abused its discretion.
The trial court did not abuse its discretion in reopening the case, as judges have broad discretion to allow parties to reopen after closing. The exclusion of the health inspector's evidence was proper because its remoteness in time deprived it of probative value when the customer presented no evidence that the conditions reported existed on the day in question. The trial court's conduct of cross-examination was within its discretion and showed no clear abuse.
[1] A trial judge has broad discretion to allow a party to reopen its case after closing, and this determination will not ordinarily be disturbed on appeal.
[2] Evidence may be excluded if its remoteness in time deprives the circumstances of any evidentiary value, even if remoteness generally goes to weight.
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Join FLexlaw to unlock all legal intelligence“The long established rule is that a trial judge has broad discretion to allow a party to reopen its case after closing and this determination will not ordinarily be disturbed on appeal.”
Establishes the standard for reviewing the trial court's decision to reopen the case after closing arguments.
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Join FLexlaw to unlock all legal intelligenceElsie Gallagher ate dinner at L.K. Family Restaurant the same day she was released from the hospital. After dinner, she became violently ill and was r…
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COWART, Judge.
This is an appeal of a final order denying a motion for new trial.
Elsie Gallagher, customer, ate dinner at the L.K. Family Restaurant after having been released from a hospital earlier that same day. After dinner she became violently ill and was readmitted to the hospital.
Customer and her husband brought an action against the restaurant grounded in strict liability, implied warranty, and loss of consortium. The customer presented evidence that her illness was the result of food poisoning, while the restaurant presented evidence that her illness was caused by the drugs which she was prescribed upon her initial release from the hospital. At the close of all evidence, the trial court reopened the case and allowed restaurant to put into evidence the entire medical record of customer’s hospital stays. The jury found for the restaurant.
Customer appeals and contends that it was an abuse of discretion for the trial court to reopen the case to allow admission of the hospital records. We disagree. The long established rule is that a trial judge has broad discretion to allow a party to reopen its case after closing and this determination will not ordinarily be disturbed on appeal. Exxon Company, U.S.A. v. Alexis, 370 So. 2d 1128 (Fla.1978); Pitts v. State, 185 So. 2d 164 (Fla.1966); Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So. 2d 549 (Fla.1951); Thrifty Supermarket, Inc. v. Kitchener, 227 So. 2d 500 (Fla. 3d DCA 1969). The record on appeal does not demonstrate that an abuse of discretion occurred.
Customer also contends that the trial court’s refusal to allow the testimony and written report of a health inspector on the practices of the restaurant twenty-nine days earlier is reversible error. After the testimony of this witness was proffered, the trial court ruled that the evidence did not have probative value because of its remoteness in time. The general rule that remoteness in point of time goes to weight rather than admissibility of the evidence applies except when the time is so far removed as to deprive the circumstances of any evidentiary value. See Hopkins v. McClure, 45 So. 2d 656 (Fla.1950). Nothing was presented by customer to suggest that conditions in the health inspector’s report caused the customer’s illness or even existed on the day in question. We affirm the trial court’s holding that because of its remoteness in time, the evidence lacked probative value to be admissible.
The customer’s final point on appeal, that the trial judge failed to limit restaurant’s expert witness to yes and no answers, is without merit. The conduct of cross-examination is in the sound discretion of the trial court. Appellate courts interfere with this exercise of discretion only on a clear showing of abuse. Revels v. State, 64 Fla. 432, 59 So. 951 (1912); Hoskins v. State, 70 Fla. 186, 69 So. 701 (1915). No clear showing of abuse has been established by customer.1
The trial court’s denial of a motion for new trial is
AFFIRMED.
DAUKSCH and ORFINGER, JJ„ concur. . The court stated "we’re not going to try. this case on who can ask the best questions. He’s got every right in the world to explain his answers. You’ve got the right to have a yes or no answer, but he’s got every right in the world to give an explanation.”
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Cited By
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M. David Sims, M.D. v. Brown, 574 So. 2d 131 (Fla. 1991)…eeping of the hospital. To be relevant, particularly if remote in time, a prior dangerous condition or negligent cause of conduct must be shown to continue uncorrected up to the time of the act sued upon. Gallagher v. L.K. Restaurant & Motels, Inc., 481 So. 2d 562 (Fla. 5th DCA 1986). Brown has failed to show this and the decision under review conflicts with Gallagher. The trial judge also found this report irrelevant or if relevant more confusing than helpful. When the district court found its exclusion rev…
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Robinson v. Weiland, 936 So. 2d 777 (Fla. 5th DCA 2006)…A 1988) (citing Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So. 2d 549 (Fla.1951); Dees v. State, 357 So. 2d 491 (Fla. 1st DCA 1978); Thrifty Super Mkt., Inc. v. Kitchener, 221 So. 2d 500 (Fla. 3d DCA 1969)); Gallagher v. L.K. Rest. & Motels, Inc., 481 So. 2d 562 (Fla. 5th DCA 1986). Factors the trial court should consider in determining whether to reopen the case to allow presentation of additional evidence include whether the opposing party will be unfairly prejudiced and whether it will serve the best int…
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Ellison v. State, 545 So. 2d 480 (Fla. 5th DCA 1989)…2d 1245 (Fla. 5th DCA 1984); Fla.R.Crim.P. 3.701.-d.ll. However, that has long been held to be insufficient. Jackson v. State, 478 So. 2d 1054 (Fla.1985), receded from on other grounds, Wilkerson v. State, 513 So. 2d 664 (Fla.1987); Davis v. State, 481 So. 2d 562 (Fla. 5th DCA 1986). We sympathize with the plight of a trial judge who is not provided with a secretary or access to a clerk who can type the judge’s orders. Such penurious conditions should not be tolerated by the judicial branch of government. H…
Authorities Cited
- Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla. 1978)
- Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla. 1951)
- Hoskins v. State, 70 Fla. 186 (Fla. 1915)
- Gus Revels v. State, 64 Fla. 432 (Fla. 1912)
- Randoil Pitts, Jr. v. State, 185 So. 2d 164 (Fla. 1966)
- Hopkins v. McClure, 45 So.2d 656 (Fla. 1950)
- Thrifty Super Mkt., Inc. v. Kitchener, 227 So. 2d 500 (Fla. 3d DCA 1969)