WINN DIXIE STORES, INC., APPELLANT,
v.
ESTATE OF PEDRO CASTANO, APPELLEE; ESTATE OF PEDRO CASTANO, APPELLANT, V. PERRINE PLAZA, R.A.R. PROPERTIES, INC., ROBERT BREDER, RICHARD F. BREDER, AND HUGH M. CARRIER, APPELLEES
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This case reviews a negligence action where the defendant, Winn Dixie, appealed a jury verdict against it, arguing prejudicial comments by the plaintiff's counsel during closing arguments. The court affirmed the verdict, finding the remarks were not preserved for review, not fundamental error, and not an abuse of discretion.
The appellate court held that the trial court did not abuse its discretion in denying the motions for mistrial and new trial. The court found the remarks were not preserved for review, were not so fundamental as to deny due process, and were made in response to defense arguments.
[1] Improper comments made during closing argument, if not preserved by a timely and proper objection and not so fundamental as to deny due process, do not warrant reversal.
[2] A trial court does not abuse its discretion by denying motions for mistrial and new trial when improper closing argument remarks were made in response to defense argument…
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“Although the remarks were improper, they were made in response to arguments of the defense, Gale v. State, 483 So. 2d 53 (Fla. 1st DCA), rev. denied, 492 So. 2d 1332 (Fla.1986), were not preserved for review by a timely and proper objection, White Constr. Co. v. DuPont, 455 So. 2d 1026 (Fla.1984); Roadway Express, Inc. v. Dade County, 537 So. 2d 594 (Fla. 3d DCA 1988), and were not so fundamental as to amount to a denial of due process, Pope v. Wainwright, 496 So. 2d 798 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).”
This quote explains why the court found the counsel's remarks were not grounds for reversal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring an eight-day negligence trial, the plaintiff's counsel made allegedly prejudicial remarks during closing arguments. The defendant, Winn Dixie, …
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PER CURIAM.
Counsel for the plaintiff made prejudicial comments during closing argument in an eight-day negligence action. Although the remarks were improper, they were made in response to arguments of the defense, Gale v. State, 483 So. 2d 53 (Fla. 1st DCA), rev. denied, 492 So. 2d 1332 (Fla.1986), were not preserved for review by a timely and proper objection, White Constr. Co. v. DuPont, 455 So. 2d 1026 (Fla.1984); Roadway Express, Inc. v. Dade County, 537 So. 2d 594 (Fla. 3d DCA 1988), and were not so fundamental as to amount to a denial of due process, Pope v. Wainwright, 496 So. 2d 798 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).
The incensed trial judge considered declaring a mistrial, sua sponte, but then denied motions for mistrial and for new trial made by the defendant, Winn Dixie. On review of the entire record, we cannot conclude that the trial court abused its discretion.
Plaintiff, the Estate of Pedro Castaño, cross-appeals two evidentiary rulings made by the court during the trial.
As proof that a violent criminal assault was foreseeable by the landlord, Perrine Plaza, and the employer-tenant, Winn Dixie, the plaintiff presented testimony of a security expert, as well as evidence of ninety-three violent crimes-to-the-person which had occurred in the immediate vicinity during a period of thirty months preceding the subject assault.
The jury returned a verdict exonerating Perrine Plaza but finding Winn Dixie liable and awarding substantial damages. There is no showing that the limitations or restrictions placed on the number of experts permitted to testify, or the type of prior crimes presented, affected the result reached by the jury, Anthony v. Douglas, 201 So. 2d 917 (Fla. 4th DCA 1967), cert. denied, 210 So. 2d 222 (Fla. 1968), or that the limitations were otherwise an abuse of discretion. Ritter v. Jimenez, 348 So. 2d 659 (Fla. 3d DCA 1977); Stager v. Florida E. Coast Ry., 163 So. 2d 15 (Fla. 3d DCA 1964), cert. discharged, 174 So. 2d 540 (Fla.), cert. denied, 382 U.S. 878, 86 S.Ct. 162, 15 L.Ed.2d 119 (1965).
AFFIRMED.
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Cited By
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Gerda L. Kennedy and Robert A. Kennedy v. Brago, 544 So. 2d 216 (Fla. 3d DCA 1989)…r in the exclusion of expert’s medical opinion was harmless in that it would have been cumulative of the testimony of four other physicians); Aiken v. Miller, 298 So. 2d 477 (Fla. 1st DCA 1974); see also Winn Dixie Stores, Inc. v. Estate of Castaño, 544 So. 2d 215 (Fla. 3d DCA 1989) (no showing that the limitation placed on the number of experts permitted to testify affected the jury verdict). AFFIRMED.…
Authorities Cited (12 total)
- Pope v. Louie L. Wainwright, 496 So. 2d 798 (Fla. 1986)
- White Constr. Co., Inc. v. Dupont, 455 So. 2d 1026 (Fla. 1984)
- Adkins v. United States, 480 U.S. 951 (U.S. 1987)
- Sabena Belgian World Airways (Societe Anonyme Belge d'Exploitation de la Navi[g]ation Aerienne) v. LeRoy, 382 U.S. 878 (U.S. 1965)
- Dempster Bros., Inc. v. Cohn in Bankruptcy, 382 U.S. 878 (U.S. 1965)
- Stager v. Fla. E. Coast Ry. Co., 163 So. 2d 15 (Fla. 3d DCA 1964)
- Roscoe T. Anthony, Jr. v. Douglas, 201 So. 2d 917 (Fla. 4th DCA 1967)
- Teala Ritter v. Jimenez, 343 So. 2d 659 (Fla. 3d DCA 1977)
- Stager v. Fla. E. Coast Ry. Co., 174 So. 2d 540 (Fla. 1965)
- Douglas v. Anthony, 210 So. 2d 222 (Fla. 1968)