MYRNA GEORGE, ET AL., APPELLANTS,
v.
FREDERICK MANN, ET AL., APPELLEES
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In this personal injury appeal, the Third District reversed a jury verdict for defendants in a dog-bite and collision case because defense counsel's closing argument improperly accused the plaintiff of lying, fraud, and discovery violations, fatally compromising the plaintiff's right to a fair trial.
The court held that the defense counsel's closing argument fatally compromised the plaintiff's right to a fair and legitimate trial and constituted reversible error, even though it was not objected to at trial. The improper remarks could not be deemed harmless given the contradictory evidence on the central issue of dog ownership.
[1] A closing argument that accuses a party of perpetrating a fraud upon the court, implying dishonesty and concealment of evidence, constitutes reversible error.
[2] Improper remarks made during closing arguments cannot be deemed harmless error when the evidence on the central issue to be decided by the jury is contradictory.
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Join FLexlaw to unlock all legal intelligence“the Manns' trial counsel presented a closing argument that "fatally compromised" the Georges' basic right to a "fair and legitimate" trial”
Establishes the standard for reversible error based on improper closing argument
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Join FLexlaw to unlock all legal intelligenceMyrna George fell from her bicycle when a small dog ran into her path, sustaining a broken hip and an alleged dog bite. She sued Frederick and Alicia …
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JORGENSON, Judge.
Myrna and Albert George, plaintiffs, appeal from a final judgment entered pursuant to a jury verdict for defendants in a personal injury action. For the following reasons, we reverse and remand for a new trial.
Myrna George fell from her bicycle when a small dog ran into her path. She suffered a broken hip and claimed that the dog had also bitten her. George sued Frederick and Alicia Mann, alleging that they were the owners of the offending dog and were thus strictly liable for her damages pursuant to section 767.01, Florida Statutes (1989). The Manns denied liability and defended on the grounds that the dog that collided with George was not the dog that they owned. At trial, the identity and ownership of the dog were hotly contested issues. The jury returned a verdict for the Manns, specifically finding that their dog was not involved in the incident. The trial court accordingly entered a judgment for the Manns; the Georges appeal.
We reverse not on any precept of “dog law,” 1 but because the Manns’ trial counsel presented a closing argument that “fatally compromised” the Georges’ basic right to a “fair and legitimate” trial. Kaas v. Atlas Chemical Co., 628 So. 2d 525 (Fla. 3d DCA 1993). Defense counsel repeatedly referred to Mrs. George’s “lawsuit pain,” and argued that she had “set up” the entire lawsuit, implying that she was a liar and was perpetrating a fraud upon the court. Defense counsel also argued to the jury that Mrs. George had concealed evidence and violated discovery orders. This line of argument, even if not objected to, constitutes reversible error. Kaas; see also Emerson Electric Co. v. Garcia, 623 So. 2d 523 (Fla. 3d DCA 1993) (accusing opposing party in front of jury of pretrial fraud, hiding evidence and putting up roadblocks to discovery of relevant evidence constitutes reversible error); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So. 2d 832 (Fla.1986).
The improper remarks cannot be deemed harmless in light of the truly contradictory evidence on the issue of the dog’s ownership. See Nicaise v. Gagnon, 597 So. 2d 305 (Fla. 4th DCA) (improper closing argument cannot be deemed harmless where issue to be decided by jury is close), rev. denied, 604 So. 2d 487 (Fla.1992).
Accordingly, we reverse and remand for a new trial.
. See generally §§ 767.01 and 767.04, Fla.Stat. (1989) and the plethora of cases whelped by these statutes; see also Mary Randolph, Dog Law (1988).
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Giani Fasani v. Kowalski, 43 So. 3d 805 (Fla. 3d DCA 2010)…. 2d at 1003 (Fla. 3d DCA 2008) (finding fundamental error in counsel’s comments accusing defense counsel of perpetuating a fraud upon the court by hiding evidence); Johnnides v. Amoco Oil Co., 778 So. 2d 443, 445 (Fla. 3d DCA 2001); George v. Mann, 622 So. 2d 151, 152 (Fla. 3d DCA 1993). Although “a single improper remark or argument might not be so prejudicial as to require reversal,” Pajares, 972 So. 2d at 979, we find here that the cumulative effect of Kowalski’s counsel’s numerous improper comments and…
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Murphy v. Int'l Robotics Sys., Inc., 710 So. 2d 587 (Fla. 4th DCA 1998)…493 So. 2d 539 (Fla. 3d DCA 1986)(defense counsel told jury about a conversation he had with plaintiffs expert neurologist in which the expert did not [*588] mention that plaintiff had a particular injury, which was not in evidence); George v. Mann, 622 So. 2d 151 (Fla. 3d DCA 1993)(defense counsel argued that the plaintiff was a liar, perpetrating a fraud, and had concealed evidence and violated discovery orders); Martino v. Metropolitan Dade County, 655 So. 2d 151 (Fla. 3d DCA 1995)(coun-sel suggesting adve…
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SDG Dadeland Assocs., Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008)…red because defense counsel, after succeeding in excluding proffered testimony of plaintiffs expert that defendant had created an unsafe condition, in closing argument “whipsawed the plaintiff for not producing that very testimony”); George v. Mann, 622 So. 2d 151, 152 (Fla. 3d DCA 1993) (“Defense counsel repeatedly referred to Mrs. George’s lawsuit pain, and argued that she had set up the entire lawsuit, implying that she was a liar and was perpetrating a fraud upon the court. Defense counsel also argued to…
Previewing 3 of 8 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)
- Emerson Elec. Co. v. Aurelio S. Garcia and Alina Garcia, 623 So. 2d 523 (Fla. 3d DCA 1993)
- City OF Tampa v. Redner, 597 So. 2d 305 (Fla. 2d DCA 1991)
- Nicaise v. Gagnon, 597 So. 2d 305 (Fla. 4th DCA 1992)