CITY OF CORAL GABLES, A MUNICIPAL CORPORATION, APPELLANT,
v.
ETHEL LEVISON AND GEORGE LEVISON, HUSBAND AND WIFE, APPELLEES
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The City of Coral Gables appealed a negligence judgment against it, arguing that an inadvertent statement by plaintiff Mrs. Levison—that waste disposal equipment was not fastened to the building "until after the accident"—constituted prejudicial error warranting reversal. The appellate court affirmed, finding the error was invited or harmless because the trial judge offered curative instructions that defense counsel declined to request.
The court held that no reversible error occurred. The inadvertent answer either constituted invited error because defense counsel declined the trial judge's offer of curative instructions, or was harmless because the statement did not affirmatively inform the jury that the defendant made repairs after the accident.
“The trial judge obviously extended to counsel for the city an opportunity to cure any error, if any had in fact occurred. Counsel did not take advantage of this opportunity. Under the circumstances it would appear that if error occurred it was invited error and insufficient to warrant reversal of this final judgment.”
Establishes the doctrine of invited error—that counsel's failure to request a curative instruction when offered bars reversal on appeal.
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Join FLexlaw to unlock all legal intelligenceMrs. Levison and her husband sued the City of Coral Gables for negligence arising from an accident involving waste disposal equipment. During Mrs. Lev…
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The City of Coral Gables appeals from a final judgment rendered in a negligence action for the plaintiffs, Ethel and George Levison, husband and wife.
The sole question on appeal arises from the following direct examination testimony elicited from Mrs. Levison. It concerned the waste disposal equipment which caused the accident. Mrs. Levison was asked, *431“Was anything installed to fasten it to the building?” Her answer was, “Not until after the accident.”
The attorneys for the city objected and the objection was sustained. The jury was then excused and a colloquy took place between the court and counsel for the respective parties. It is obvious from the colloquy that the remark made by Mrs. Levison was inadvertent and unexpected by her counsel. The city does not challenge the fact that the answer was inadvertent.
The city contends that the answer constituted prejudicial and reversible error and that the final judgment rendered upon the jury verdict should be reversed. We cannot agree.
While the jury was absent, the city moved for a mistrial and its motion was denied. The able trial judge then asked counsel whether they wanted an instruction to the jury to disregard the answer of Mrs. Levison. There was no response to this inquiry. Later, during the colloquy, the trial judge again asked counsel whether they wanted an instruction to the jury with regard to the sustaining of the objection and again, there was no response from counsel. The judge, after apparently waiting for a response, stated that he would “let it go as is.”
The trial judge obviously extended to counsel for the city an opportunity to cure any error, if any had in fact occurred. Counsel did not take advantage of this opportunity. Under the circumstances it would appear that if error occurred it was invited error and insufficient to warrant reversal of this final judgment. See 2 Fla. Jur. Appeals § 313.
In addition, review of the record reveals that the evidence therein taken as a whole does not show that the city was deprived of a fair and impartial trial. See Central Hardware Co. v. Stampler, Fla. App.1965, 180 So.2d 205. The inadvertent answer did not inform the jury that the defendant had made any changes or repairs after the accident. The jury might have drawn the inference from the remark that the Levinsons had taken some action after the accident.
Under the facts and circumstances, as revealed by the record of this case, we do not find that reversible error has been committed.
The final judgment herein appealed be and the same is hereby affirmed.
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Sullivan v. State, 303 So. 2d 632 (Fla. 1974)…hich we held that defense counsel was not entitled to written results of a polygraph test given a co-defendant under the favorable evidence doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1968). . Coral Gables v. Levison, 220 So. 2d 430 (Fla.App.3d 1969); Gagnon v. State, 212 So. 2d 337 (Fla.App.3d 1968).…
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Ellison v. State, 349 So. 2d 731 (Fla. 3d DCA 1977)…ing. Florida courts follow the “invited error” rule, which stands for the proposition that an appellant may not take advantage of an error which he has induced. Arsenault v. Thomas, 104 So. 2d 120 (Fla.3d DCA 1958); City of Coral Gables v. Levlson, 220 So. 2d 430 (Fla.3d DCA 1969); Sullivan v. State, 303 So. 2d 632 (Fla.1974); Castle v. State, 305 So. 2d 794 (Fla.4th DCA 1974). Constitutional rights may be waived just as other rights may be waived; a criminal defendant may, by his conduct, make otherwise co…
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Rockwell Int'l Corp. v. Gregorie Menzies and Ziol Menzies, 561 So. 2d 677 (Fla. 3d DCA 1990)…sanctions imposed were too drastic because they precluded Rockwell from presentation of evidence on its comparative negligence defense. This argument is without merit because Rockwell invited the error on this point. City of Coral Gables v. Levison, 220 So. 2d 430 (Fla. 3d DCA 1969); Hevia v. Palm Terrace Fruit Company, 119 So. 2d 795 (Fla. 2d DCA 1960); see generally, Bould v. Touchette, 349 So. 2d 1181 (Fla.1977); Leisure Group, Inc. v. Williams, 351 So. 2d 374 (Fla. 2d DCA 1977). The record demonstrates t…
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
- Cent. Hardware Co. v. Sydelle Stampler, 180 So. 2d 205 (Fla. 3d DCA 1965)