ANITA M. STOKES, APPELLANT,
v.
WET 'N WILD, INC., APPELLEE
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Anita Stokes appeals a judgment in her personal injury suit against Wet 'N Wild, Inc., following a T-12 compression fracture injury sustained on the defendant's amusement park ride. The appellate court reversed and remanded for a new trial due to improper closing argument by defense counsel that included references to overcrowded courtrooms and repeated statements of personal opinion about witness credibility and the justness of the defendant's position.
The court held that the combined effect of counsel's improper comments—particularly the reference to overcrowded courtrooms and numerous expressions of personal opinion—warranted reversal and a new trial. The reference to courthouse crowding was highly improper as an attempt to appeal to the jurors' conscience on matters unrelated to the evidence, and the personal opinion statements violated Florida Bar Rule 4-3.4.
[1] Improper argument during closing, which appeals to the conscience of the community and matters far afield from the evidence, may warrant a new trial.
[2] A lawyer shall not state a personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a civil litigant.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The reference to problems of overcrowded courtrooms is clearly an attempt to appeal to the conscience of the community and matters far afield from the evidence admitted in the case. As such it was highly improper and may have been grounds for a new trial even absent objection.”
Establishes that references to systemic court problems constitute reversible improper argument regardless of objection.
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Join FLexlaw to unlock all legal intelligenceStokes suffered a T-12 compression fracture of her back after reaching the bottom of the Banzai Boggan ride at Wet 'N Wild. Her orthopedic surgeon, Dr…
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SHARP, Chief Judge.
Stokes appeals from a final judgment denying her any recovery in her personal injury suit against Wet ’N Wild, Inc., and from the trial court’s denial of her motion for new trial. Improper argument during closing was the basis of Stokes’ new trial motion. We agree Stokes is entitled to a new trial.
After reaching the bottom of the Banzai Boggan ride at Wet ’N Wild, Stokes felt a sharp pain in her back. There was no question but that she had suffered a T-12 compression fracture of her back. This was testified to by her orthopedic surgeon, Dr. Baker. Dr. Baker gave her a five percent permanent impairment rating. Even defense counsel agreed Stokes suffered at least $6,000.00 to $7,000.00 in damages.
At the beginning of his closing argument, counsel for Wet ’N Wild said:
Now, I don’t mean to insult your intelligence and please excuse me if I do. [Referring to plaintiff’s chart which summarized possible damages and which was left in the courtroom.] This adds up to $48,300.00 and it is absolutely ridiculous. This is why we’re here. This is why our courtrooms are crowded and this is why we read articles in the newspaper, because of things like that.
Stokes’ attorney objected to these stat-ments as improper and asked for a curative instruction. The trial court refused to give it. After Wet ’N Wild’s attorney finished his closing argument, Stokes’ attorney once again asked for a curative instruction and for a mistrial based on the reference to overcrowded courtrooms. The jury found no negligence on the part of Wet ’N Wild.
The reference to problems of overcrowded courtrooms is clearly an attempt to appeal to the conscience of the community and matters far afield from the evidence admitted in the case. As such it was highly improper and may have been grounds for a new trial even absent objection. See S.H. Investment and Development Corporation v. Kincaid, 495 So. 2d 768 (Fla. 5th DCA 1986), review denied, 504 So. 2d 767 (Fla.1987); Borden Inc. v. Young, 479 So. 2d 850 (Fla. 3rd DCA 1985), review denied, 488 So. 2d 832 (Fla.1986); Schreier v. Parker, 415 So. 2d 794 (Fla. 3rd DCA 1982); Westbrook v. General Tires and Rubber Company, 754 F. 2d 1233 (5th Cir.1985).
In addition, a review of Wet ’N Wild’s closing argument reveals numerous expressions of the attorney’s personal opinion concerning the justness of Wet ’N Wild’s defenses, the credibility of witnesses or the lack thereof, and Stokes’ culpability as a civil litigant. For example, the attorney said he did not think Stokes’ witnesses’ testimony was reasonable. He did not like Stokes’ expert witness and he thought he was misleading; he did not think Stokes’ testimony was true.
Although not specifically objected to by Stokes’ attorney, these comments were in breach of The Rules Regulating The Florida Bar, Rule 4-3.4, entitled: Fairness of Opposing Parties and Counsel. That rule provides that a lawyer shall not:
(e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of the facts in issue except when testifying as a witness, or state a personal opinion as to the justness of the cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.
The combined effect of counsel’s improper comments warrants the reversal of the judgment in this case and award of a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.
ORFINGER and DANIEL, JJ., concur.
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Cited By (19 total)
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Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)…en though they may not rise to the level of an actual deprivation of the appellant’s constitutional rights. Particularly in the case of procedural errors and trial conduct, the case law reflects this tendency. See, e.g., Stokes v. Wet 'N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988); Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787 (Fla. 1st DCA 1989) (severe misconduct by opposing counsel). The mere fact that an error, especially a procedural error, is fundamental for purposes of relief on direct appea…
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Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994)…s, Inc. v. Anderson, 578 So. 2d 855 (Fla. 5th DCA 1991); Riley v. Willis, 585 So. 2d 1024 (Fla. 5th DCA 1991); Schubert v. Allstate Ins. Co., 603 So. 2d 554 (Fla. 5th DCA 1992), rev. dismissed, 606 So. 2d 1164 (Fla.1992); Stokes v. Wet’N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988); Nazareth v. Sapp, 459 So. 2d 1088 (Fla. 5th DCA 1984). In the instant ease, closing argument by counsel for the plaintiffs began with an unctuous tribute to the character of the plaintiff and his testimonial observation that co…
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Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. 1st DCA 1989)…l belief regarding the facts of a case. It is axiomatic that a lawyer’s expression of his personal opinion as to the credibility of a witness, or of his personal knowledge of facts in the case, is fundamentally improper. Stokes v. Wet ’N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988); Brumage v. Plummer, 502 So. 2d 966 (Fla. 3d DCA), review denied, 513 So. 2d 1062 (Fla.1987); S.H. Investment & Dev. Corp. v. Kincaid, 495 So. 2d 768 (Fla. 5th DCA 1986); review denied, 504 So. 2d 767 (Fla.1987); Gregory v. Seabo…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985)
- Schreier v. Parker, 415 So. 2d 794 (Fla. 3d DCA 1982)
- Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233 (5th Cir. 1985)
- S.H. Inv. & Dev. Corp. v. Dorsey Kincaid and Bernice Kincaid, 495 So. 2d 768 (Fla. 5th DCA 1986)