MIRIAM HERNANDEZ, APPELLANT,
v.
HOME DEPOT U.S.A., INC., A FOREIGN CORPORATION, APPELLEE; HOME DEPOT U.SA., INC., A FOREIGN CORPORATION, APPELLANT, V. MIRIAM HERNANDEZ, APPELLEE
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In a premises liability case arising from an insecticide can falling from a shelf, the appellate court reversed the jury verdict for Home Depot and remanded for a new trial, finding that the trial judge abused his discretion by excluding the plaintiff's expert testimony regarding unsafe stacking practices that violated industry safety standards.
The trial judge abused his discretion in excluding the expert safety consultant's patently helpful testimony about industry standards and unsafe conditions, and therefore a new trial is required.
[1] A trial court order granting a new trial is untimely and without jurisdiction if entered after the court has relinquished jurisdiction to an appellate court for a limited…
[2] An appellate court may reverse a defense judgment and uphold a trial court's conclusion that a new trial is required, even if the trial court initially denied a motion fo…
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Join FLexlaw to unlock all legal intelligence“the trial judge abused his discretion in excluding the patently helpful testimony of the plaintiffs expert safety consultant that, among other things, Home Depot's method of stacking the product did not "meet the general retail safety standards in the industry" and resulted in the maintenance of what was, in several respects, an "unsafe condition."”
Establishes the core basis for reversal—the erroneous exclusion of key expert evidence on industry standards
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Join FLexlaw to unlock all legal intelligencePlaintiff Miriam Hernandez was allegedly injured when an open can of insecticide that was perched on a high shelf at a Home Depot store fell into her …
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SCHWARTZ, Chief Judge.
After a jury verdict for the defendant Home Depot in a premises Lability case in which the plaintiff was allegedly injured when an open can of insecticide perched on a high shelf fell into her eyes, the trial judge first denied a timely filed motion for new trial. Subsequently, however — purportedly but unauthorizedly pursuant to an order of this court which relinquished jurisdiction in the appeal (case no. 96-1790) by the plaintiff from the ensuing adverse judgment for the purpose only of the lower court’s consideration of a Rule 1.540 motion based on newly discovered evidence (of which there was none) — the trial court in essence reconsidered the original motion and granted it. It is apparent that this order, now on review in case no. 96-2907, must be vacated as entered untimely and without jurisdiction. Volumes in Value, Inc. v. Buy Mail Int'l Inc., 177 So. 2d 511 (Fla. 3d DCA 1965); see Catsicas v. Catsicas, 669 So. 2d 1126 (Fla. 4th DCA 1996); Hyster Co. v. Morales, 591 So. 2d 1082 (Fla. 3d DCA 1991); DePadro v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968), cert. denied, 222 So. 2d 748 (Fla.1969); Lee v. Elliott, 155 So. 2d 169 (Fla. 3d DCA 1963).
Notwithstanding, upon consideration of the plaintiffs initial appeal, we reverse the defense judgment because, in essence, the trial judge should have granted the timely motion for new trial in the first place. We thus uphold his conclusion that a new trial is required in this case.
We do so because, in our (and, in the last analysis, his) view, the trial judge abused his discretion in excluding the patently helpful testimony of the plaintiffs expert safety consultant that, among other things, Home Depot’s method of stacking the product did not “meet the general retail safety standards in the industry” and resulted in the maintenance of what was, in several respects, an “unsafe condition.” Ploetz v. Big Discount Panel Ctr., 402 So. 2d 64 (Fla. 4th DCA 1981); see State Farm Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935 (Fla. 4th DCA 1996); Metropolitan Dade County v. St. Claire, 445 So. 2d 614 (Fla. 3d DCA 1984); Sheckler v. City of Mt. Dora, 395 So. 2d 1188 (Fla. 5th DCA 1981); Schwartz v. M.J.M. Corp., 368 So. 2d 91 (Fla. 3d DCA 1979); Gifford v. Galaxie Homes of Tampa, Inc., 223 So. 2d 108 (Fla. 2d DCA 1969), cert. denied, 229 So. 2d 869 (Fla.1969); Millar v. Tropical Gables Corp., 99 So. 2d 589 (Fla. 3d DCA 1958).
We are not uninfluenced by the fact that the error was unfairly exacerbated and compounded when, in final argument, defense counsel, who had succeeded in excluding this available and proffered evidence of his client’s negligence, then — in what must be the ultimate gotchaism — whipsawed the plaintiff for not producing that very testimony. As quoted at page 432 of the record,1 he said:
What is the evidence that we were negligent? What is the evidence that Home Depot did something or did not do something?
H: He He H*
Where is the evidence? Where is the proof that Home Depot should not have done that?
* * * * * *
Where is there any evidence that Home Depot was wrong; that they did something bad? Where is the evidence? There’s no evidence.
* * * * * *
So, again, you’re faced with a lack of evidence.
Where is the evidence that Home Depot violated any standards?
In Bauta v. State, — So. 2d -, - [1997 WL 194122] (Fla. 3d DCA Case no. 95-387, opinion filed, April 23, 1997)[22 FLW D1020, D1021], we characterized just such an argument as “disingenuous” and “misleading,” and in such cases as Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979) and its progeny, we have repeatedly disapproved of the general approach to lawyering and litigation it represents. We do so again.
For these reasons, the order granting a new trial is vacated, the final judgment is reversed and the cause is remanded for a new trial.
Vacated, reversed and remanded.
. It is difficult to understand why, in response to a direct inquiry on the matter at oral argument, counsel for Home Depot stated that these remarks were not in the record.
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Citator
Cited By (11 total)
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Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007)…e he did not have favorable evidence to present for the State, was disingenuous and misleading, as the defense had successfully prevented the jury from hearing the favorable evidence he was prepared to provide); Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484, 485 (Fla. 3d DCA 1997) (granting a new trial where defense counsel, after succeeding in excluding evidence, raised during closing argument the plaintiffs failure to present the evidence defense counsel succeeded in excluding; characterizing defense…
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SDG Dadeland Assocs., Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008)…(Fla. 3d DCA 2003) (reversal required because of comments made by defense counsel regarding the plaintiffs failure to call her daughter to testify where defense counsel knew daughter was estranged from parents); Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484, 485-86 (Fla. 3d DCA 1997) (reversal required 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 produc…
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State Farm Mut. Auto. Ins. Co. & Daniel J. Thomas v. Holli R. Thorne, 110 So. 3d 66 (Fla. 2d DCA 2013)…because it improperly implied that the failure to offer the testimony was because the defendant had no favorable testimony to present to the fact finder. Id. (citing Carnival Corp., 972 So. 2d at 975); see also Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484, 485 (Fla. 3d DCA 1997) (holding that the error in excluding the plaintiffs expert testimony on the issue of negligence was unfairly exacerbated and compounded when in closing defense counsel stated: “What is the evidence that we were negligent?”).9…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (18 total)
- Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979)
- Millar v. Tropical Gables Corp., 99 So. 2d 589 (Fla. 3d DCA 1958)
- Volumes IN Value, Inc. v. BUY Mail Int'l, Inc., 177 So. 2d 511 (Fla. 3d DCA 1965)
- DePADRO v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968)
- Gifford v. Galaxie Homes OF Tampa, Inc., 223 So. 2d 108 (Fla. 2d DCA 1969)
- State Farm Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935 (Fla. 4th DCA 1996)
- Bassham v. State, 222 So. 2d 748 (Fla. 1969)
- Pepin & Campbell Ins. Co. v. Johns, 222 So. 2d 748 (Fla. 1969)
- LEE v. Elliott, 155 So. 2d 169 (Fla. 3d DCA 1963)
- Metro. Dade Cnty. v. Anne ST. Claire and Douglas St. Claire, 445 So. 2d 614 (Fla. 3d DCA 1984)