THE GRAND UNION COMPANY, A DELAWARE CORPORATION, D/B/A GRAND UNION STORE NO. 25, APPELLANT,
v.
VIRGINIA DEVLIN, APPELLEE
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Grand Union appeals from a jury verdict awarding damages to a customer injured when a shopping cart wheel came off in the defendant's store. While the court found sufficient evidence to support the liability verdict, it reversed and remanded for a new trial on damages due to improper closing arguments by plaintiff's counsel that prejudiced the jury.
The court affirmed the liability verdict as supported by sufficient evidence but reversed and remanded for a new trial solely on the question of damages due to the cumulative prejudicial effect of plaintiff's counsel's improper arguments.
“A review of the record indicates that there was a jury question presented on the issue of whether the defendant Grand Union had been negligent.”
Establishes that the liability verdict was supported by sufficient evidence and would not be disturbed on appeal.
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Join FLexlaw to unlock all legal intelligenceVirginia Devlin was injured at a Grand Union market when a wheel came off a shopping cart she was pushing, causing the cart to topple and her to fall …
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Defendant below, Grand Union, appeals from a final judgment for plaintiff after a jury verdict.
Plaintiff was injured in a Grand Union market when a wheel came off a shopping cart which she was pushing, causing the cart to topple, resulting in the plaintiff falling to the floor and injuring herself.
The case was vigorously and capably contested before the jury on the questions of liability and damage. A review of the record indicates that there was a jury question presented on the issue of whether the defendant Grand Union had been negligent. See Economy Cash & Carry Cleaners v. Gitlin, 146 Fla. 242, 1 So.2d 191 (1941); Harvey v. Maistrosky, Fla.App.1959, 114 So.2d 810; and Parce v. Flotsam, Inc., Fla.App.1966, 182 So.2d 440.
Notwithstanding the fact that there was sufficient evidence to sustain the jury verdict of negligence, it is necessary to reverse and remand this cause for a new trial solely on the question of damages.
*490The evidence reflects that the plaintiff was a 77 year old woman who had previously suffered an injury in the course of her employment which had resulted in a finding that she was 100% permanently disabled by the Florida Industrial Commission. Her actual medical expenses involved herein were in the approximate amount of $3,600; and the jury returned a verdict for $40,000.
One of the attorneys for the plaintiff resorted to the use of a “golden rule argument” in his closing argument,1 in addition to arguing matters which were not in evidence. Plaintiff’s attorney also accused the defendant of destroying evidence, to-wit, the grocery cart causing the accident, when there was no evidence presented that the defendant had destroyed such evidence. See Griffith v. Shamrock Village, Fla.1957, 94 So.2d 854.
In closing argument, the attorney for the plaintiff also made no reference to the specific amount of damages which he was seeking for his client for the injuries sustained in the fall. The attorney for the defendant in his reply made no reference to any specific amount of damages but advised the jury that he would leave the amount of damages, if any, to their judgment. In closing, plaintiff’s attorney told the jury that he thought the sum of $65,000 would be reasonable under the circumstances. The attorney for the defendant objected and moved for a mistrial but before the court could rule on this matter, plaintiff’s counsel again mentioned the specific figure and the trial judge thereafter sustained the objection. See Seaboard Air Line Ry. v. Rentz, 60 Fla. 449, 54 So. 20 (1910); Carlton v. Johns, Fla.App.1967, 194 So.2d 670; Heddendorf v. Joyce, Fla.App.1965, 178 So.2d 126.
The collective impact of the aforesaid actions by the plaintiff’s attorney resulted in inflaming and prejudicing the jury against this corporate defendant.
We find that based on and limited to the facts in this case, the actions of the plaintiff’s attorney were improper in that they prejudiced the jury and we reverse and remand this cause for a trial on the sole question of damages.
It is so Ordered.
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Cedars OF Lebanon Hosp. Corp. v. Orlando Silva, M.D., 476 So. 2d 696 (Fla. 3d DCA 1985)…ls, Inc., 386 So. 2d 1273, 1274 (Fla. 3d DCA 1980), rev. denied, 392 So. 2d 1379 (Fla. 1981) (new trial on damages only, notwithstanding that “the evidence presented on the issue of defendants’ liability was conflicting”); Grand Union Co. v. Devlin, 213 So. 2d 488, 489 (Fla. 3d DCA 1968) (new trial on damages only despite the fact that “case was vigorously and capably contested before the jury on the questions of liability and damages”). A substantial dispute about liability (which admittedly existed) is not…
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City Provisioners, Inc. v. Anderson, 578 So. 2d 855 (Fla. 5th DCA 1991)…. However, because the jury’s finding on liability was overwhelmingly supported by the evidence and because virtually all of the improper comments made to the jury related to damages, we order a new trial only on damages.3 Grand Union Co. v. Devlin, 213 So. 2d 488 (Fla. 3d DCA 1968), cert. denied, 222 So. 2d 750 (Fla.1969). AFFIRMED in part; REVERSED in part; and REMANDED. HARRIS and DIAMANTIS, JJ., concur. . For example: "We gave him a prescription for Talwin Nx and we advised him to check with us in thre…
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Devlin v. Grand Union Co., 222 So. 2d 750 (Fla. 1969)…Certiorari denied without opinion. 213 So. 2d 488.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffith v. Shamrock Vill., Inc., 94 So. 2d 854 (Fla. 1957)
- Goldberg v. Weinkle, 130 So. 2d 74 (Fla. 3d DCA 1961)
- Carlton v. Johns, 194 So. 2d 670 (Fla. 4th DCA 1967)
- Seaboard Air Line Railway v. Rentz, 60 Fla. 449 (Fla. 1910)
- Heddendorf v. Joyce, 178 So. 2d 126 (Fla. 2d DCA 1965)
- Harvey v. Maistrosky, 114 So. 2d 810 (Fla. 2d DCA 1959)
- Econ. Cash & Carry Cleaners, Inc. v. Gitlin, 146 Fla. 242 (Fla. 1941)
- Parce v. Flotsam, Inc., 182 So. 2d 440 (Fla. 3d DCA 1966)