AETNA CASUALTY AND SURETY COMPANY, SUBROGEE OF DOLPHIN KNITTING MILLS, INC., ET AL., APPELLANTS,
v.
SEACOAST TRANSPORTATION COMPANY, ETC., ET AL., APPELLEES

Fla. 3d DCA | 1988-07-12
No. 87-15
Before SCHWARTZ, C.J., and HUBBART and BASKIN, JJ.
528 So. 2d 480 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 11 cases

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Holding

The court held that the trial court did not commit prejudicial error by conducting the charge conference after final arguments or by giving a modified comparative negligence instruction, as the jury found no negligence by the defendant and thus did not reach the issue of comparative negligence.


Headnotes

[1] A trial court's failure to conduct a charge conference prior to attorneys' final arguments is not prejudicial error if the opposing counsel's argument does not misstate t…

[2] A jury's finding of no negligence on the part of the defendant renders harmless any error in giving or modifying a comparative negligence instruction, as the jury never r…

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Facts & Procedural History

A Seacoast driver damaged a sprinkler pipe while maneuvering a tractor-trailer into a Dolphin Knitting Mills loading bay, causing water damage. Dolphi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Aetna Casualty & Surety Company, a subrogee of Dolphin Knitting Mills, and Steven Mishan, trustee in bankruptcy for the estate of Dolphin Knitting Mills [Dolphin], appeal from a final judgment in favor of Seacoast Transportation Company, its driver, Duane Sinquefield, and Liberty Mutual Insurance Company [Seacoast].

In the course of moving a tractor-trailer into one of Dolphin’s loading bays, a Seacoast driver damaged an overhanging sprinkler pipe, causing water to spray into the Dolphin warehouse. Dolphin instituted an action charging Seacoast with negligence. Seacoast responded, stating that there had been ample clearance between the truck and the sprinkler head. It maintained that the clearance demonstrated that it had not been negligent and that any negligence that occurred was attributable to the Dolphin employee who guided the truck into the bay. The case went to trial and culminated in a jury verdict in favor of Seacoast. This appeal ensued. We affirm.

Dolphin’s first point is that the trial court erred in failing to conduct the charge conference prior to proceeding with the attorneys’ final arguments to the jury.1 As a result, it maintains, Seacoast’s attorney’s argument incorrectly stated that Dolphin’s employee was contributorily negligent in guiding the truck. Under the doctrine of contributory negligence, Dolphin would not be entitled to recover any damages.

As to this first point, we find no prejudicial error. Although the court conducted the charge conference after final arguments had been completed instead of at the close of evidence as provided in Florida Rule of Civil Procedure 1.470(b), Seacoast’s summation did not contain a contributory negligence theory. Rather, Seacoast asserted that its driver was not negligent and that the only negligence was that of Dolphin employee Sinquefield. Thus, Dolphin’s claim of prejudice on that ground fails.

Next, Dolphin cites error in the trial court’s giving an instruction on comparative negligence. We find no merit in its position. Dolphin requested the comparative negligence instruction, objecting only to its modification. The modification did not constitute a substantive change; it merely clarified the content of the instruction.2 More significant, however, is the fact that the jury did not reach the issue of Dolphin’s comparative negligence. The jury returned a special verdict finding no negligence on the part of Seacoast. Cf. Kinya v. Lifter, Inc., 489 So. 2d 92 (Fla. 3d DCA) (failure to give concurring cause instruction harmless error where jury found defendant was not negligent and never reached comparative negligence issue), review denied, 496 So. 2d 142 (Fla.1986); McDaniel v. Prysi, 432 So. 2d 174 (Fla. 2d DCA 1983) (no prejudice in personal injury action when court gave cautionary instruction pertaining to counsel’s “per diem” jury argument on damages, in that jury never reached the issue). Thus, it is evident the jury did not address the question of Dolphin’s comparative negligence and no error appears.

Finding no reversible error, we affirm.

. Fla.RXiv.P. 1.470(b) provides:

(b) Instructions to Jury. Not later than at the close of the evidence, the parties shall file written requests that the court charge the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the charges to be given. At such conference all objections shall be made and ruled upon and the court shall inform counsel of such general charges as it will give. No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same. The court shall charge the jury after the arguments are completed.

. The instruction given by the court provided:

On the defense, the issue for your determination is whether Dolphin or any agent or employee acting on Dolphin’s behalf was itself negligent and, if so, whether such negligence was a contributing legal cause of the damages complained of.

If the greater weight of the evidence does not support the defense of Sinquefield, Seacoast and Liberty and the greater weight of the evidence does support the claim of Dolphin an Aetna, then your verdict should be for Dolphin an Aetna in the total amount of their damages.

If, however, the greater weight of the evidence shows that both Dolphin and its employees or its employees and Sinquefield were negligent, that the negligence of each contributed as a legal cause of losses and damages sustained by Dolphin and Aetna, you should determine what percentage of the total negligence of both Dolphin or its employee and Sinquefield is chargeable to each.

The underlined words were added for clarification.


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Citator

Cited By

  • Thomason v. Irmalenna Gordon, 782 So. 2d 896 (Fla. 5th DCA 2001)
    …ive any charge unless that party requested the same. The court shall orally charge the jury after the arguments are completed and, when practicable, shall furnish a copy of its charges to the jury. See Aetna Cas. & Sur. Co. v. Seacoast Transp. Co., 528 So. 2d 480, 481 (Fla. 3d DCA 1988). For obvious reasons, holding the charge conference prior to closing arguments is highly preferable, because “[o]ne of the purposes in having a conference on jury instructions before closing arguments is to allow the attorne…
    1 / 2
  • Hasburgh v. WJA Realty, 697 So. 2d 219 (Fla. 4th DCA 1997)
    …in including the additional unknown tortfeasors on the verdict form, which would have allowed an apportionment of fault, is harmless. See E.H.P. Corp. v. Cousin, 654 So. 2d 976 (Fla. 2d DCA 1995). Cf. Aetna Cas. and Sur. Co. v. Seacoast Transp. Co., 528 So. 2d 480 (Fla. 3d DCA 1988). We therefore do not address whether our opinion in Slawson v. Fast Food Enterprises, 671 So. 2d 255 (Fla. 4th DCA), rev. dismissed, 679 So. 2d 773 (Fla.1996), would preclude apportionment of fault here had Appellee been found neg…
  • Fla. Dep't OF Transp. v. Juliano, 744 So. 2d 477 (Fla. 3d DCA 1999)
    …hirty percent (30%) comparatively negligent, the jury obviously rejected Juliano’s distraction as an excuse. Thus, the giving of this special instruction, at best, constituted harmless error. See e.g. Aetna Cas. and Sur. Co. v. Seacoast Transp. Co., 528 So. 2d 480, 481 (Fla. 3d DCA 1988) (trial court’s comparative negligence instruction in negligence action was harmless error where jury returned special verdict finding no negligence on defendant’s part); cf. Kinya v. Lifter, Inc., 489 So. 2d 92, 94 (Fla. 3d D…

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