ELIZABETH PERL, APPELLANT,
v.
K-MART CORPORATION, D/B/A K-MART STORES, APPELLEE
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Elizabeth Perl appealed a jury verdict in her slip-and-fall case against K-Mart, arguing that juror Frank Bower committed voir dire fraud by concealing at least twenty prior litigations involving his automobile company and personal involvement in a condominium association lawsuit. The court held that Bower's material misrepresentations during jury selection warranted a new trial.
The court held that the trial court erred in denying the motion for a new trial. Bower's denial of personal involvement in any lawsuits and his extremely limited response regarding lawsuits against his company constituted concealment of material facts that satisfied the three-part test for juror misconduct requiring a new trial.
[1] A new trial is required due to a juror's nondisclosure of information if the facts were material, concealed by the juror during voir dire, and the failure to discover the…
[2] A juror's extensive prior involvement in litigation, both as a plaintiff and in lawsuits against their business, constitutes concealment of material facts when asked abou…
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Join FLexlaw to unlock all legal intelligence“a three-part test must be met before a new trial will be required because of a juror's nondisclosure of information: (1) the facts must be material; (2) the facts must be concealed by the juror upon his voir dire examination; and (3) the failure to discover the concealed facts must not be due to the want of diligence of the complaining party”
Establishes the legal standard for juror misconduct claims based on voir dire misrepresentation
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Join FLexlaw to unlock all legal intelligencePerl sued K-Mart after slipping and falling at a store. During voir dire, Bower was asked about prior litigation involvement and responded that his co…
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PER CURIAM.
The appellant, Elizabeth Perl, sued the appellee, K-Mart Corporation, after she slipped and fell at a K-Mart store. The jury returned a verdict for K-Mart. Perl moved for a new trial alleging that Frank Bower, a juror who ultimately became foreman of the jury, misrepresented material facts during voir dire. Her motion was denied. We agree with Perl that the trial court erred in denying the motion for a new trial and, for the reasons which follow, reverse and remand for further proceedings.
During the course of voir dire, counsel for Perl asked all the jurors, including Frank Bower, whether any of them had ever been party to a lawsuit either as a plaintiff or as a defendant. Bower responded that, in his capacity as a partial owner of an automobile company, his company had been sued once for improperly repairing a car. Bower did not recall any other involvement in litigation. After the trial concluded, counsel for Perl discovered that Bower and his automobile company had been involved in litigation at least twenty times and that he personally had been a plaintiff in a lawsuit brought by his condominium association against a developer. In Schofield v. Carnival Cruise Lines, 461 So. 2d 152, 154 (Fla. 3d DCA), rev. denied, 472 So. 2d 1182 (Fla.1984), this court recognized that a three-part test must be met before a new trial will be required because of a juror’s nondisclosure of information: (1) the facts must be material; (2) the facts must be concealed by the juror upon his voir dire examination; and (3) the failure to discover the concealed facts must not be due to the want of diligence of the complaining party. See also Redondo v. Jessup, 426 So. 2d 1146 (Fla. 3d DCA), rev. denied, 434 So. 2d 887 (Fla.1983).
Bower’s denial of personal involvement in any lawsuits and his extremely limited response with respect to lawsuits against his company involving personal injuries amount to a concealment of material facts. The failure of plaintiff’s counsel to discover the material, concealed facts did not result from a want of diligence on his part.
K-Mart’s reliance on the result in Scho-field is misplaced. In Schofield, there was ample opportunity for counsel to make an inquiry following the prospective juror’s revelation that he had had professional contact with an expert witness in the case. K-Mart’s assertion that the inquiry by Perl’s counsel was equivocal and that Bower’s answers were honestly given is not supported by the record. We accordingly reverse and remand for a new trial.
Reversed and remanded for a new trial.
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DE LA Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995)…to jury selection. In another case, he appeared at a deposition in aid of execution only 6 months before jury selection. These were material facts concealed by the potential juror. This warrants the granting of a new trial. Perl vs. K-Mart Corp., 493 So. 2d 542 (Fla.App. 3rd D.C.A.1986).…
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Blaylock v. State, 537 So. 2d 1103 (Fla. 3d DCA 1988)…y must prove three things: (1) the facts must be material, (2) the facts must be concealed by the juror during voir dire, and (3) the failure to discover the concealment was not due to the complaining party’s lack of diligence. Perl v. K-Mart Corp., 493 So. 2d 542 (Fla. 3d DCA 1986); Schofield v. Carnival. Cruise Lines, 461 So. 2d 152 (Fla. 3d DCA 1984), rev. denied, 472 So. 2d 1182 (Fla.1985); Skiles v. Ryder Truck Lines, Inc., 267 So. 2d 379, 380 (Fla. 2d DCA 1972), cert. denied, 275 So. 2d 253 (Fla.1973).…
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Indus. Fire & Cas. Ins. Co. v. Wilson, 537 So. 2d 1100 (Fla. 3d DCA 1989)…(1) the facts must be material; (2) the facts must be concealed by the juror upon his voir dire examination; and (3) the failure to discover the concealed facts must not be due to the want of diligence of the complaining party.” Perl v. K-Mart Corp, 493 So. 2d 542, 542 (Fla. 3d DCA 1986). Clearly, these requirements were met in the present case. The record reflects that Perets concealed the following facts: (1) that he had been insured by Industrial Fire; (2) that he had filed a claim with Industrial Fire; (…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Betty and George Schofield v. Carnival Cruise Lines, Inc., 461 So. 2d 152 (Fla. 3d DCA 1984)
- Redondo v. Jessup, 426 So. 2d 1146 (Fla. 3d DCA 1983)