SEARS, ROEBUCK & COMPANY, A FOREIGN CORPORATION, AND LAWNLITE COMPANY, APPELLANTS,
v.
MILTON MCAFOOS, APPELLEE
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Sears and Lawnlite appeal a $130,000 judgment in a personal injury case arising from an aluminum extension ladder that collapsed while the plaintiff was painting his house. The appellate court affirmed the judgment, rejecting the defendants' arguments that expert testimony was based on faulty assumptions and that improper remarks by plaintiff's counsel warranted a new trial.
The court affirmed the judgment, finding that defendants' failure to make timely objections at trial precluded them from raising these issues on appeal. Additionally, any error by plaintiff's expert was partly attributable to defendants' negligence in supplying drawings for multiple ladder sizes.
[1] A party waives the right to appeal an expert witness's testimony based on a false assumption if no timely objection is made at trial.
[2] A party waives the right to appeal alleged improper remarks of opposing counsel if no timely objection is made at trial.
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Join FLexlaw to unlock all legal intelligence“Appellants having failed to make timely objection to the complained of expert testimony at the trial, they now are precluded from raising the same as error for the first time on appeal.”
Establishes the procedural bar against raising issues for the first time on appeal when timely objection was not made at trial.
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Join FLexlaw to unlock all legal intelligenceOn May 11, 1972, Milton McAfoos purchased an eight-foot aluminum extension ladder from Sears, manufactured by Lawnlite, with assurances it was safe fo…
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PER CURIAM.
Defendant-appellants appeal an adverse final judgment awarding plaintiff the sum of $130,000 plus costs in this personal injury action. On May 11, 1972 plaintiff-appellee, Milton McAfoos, purchased from defendant-appellant, Sears, Roebuck and Company, an eight foot aluminum extension ladder which defendant Sears’ salesman assured plaintiff was safe and sufficient to use in painting the outside of his house. The ladder was sold as a Sears’ product, but was manufactured for Sears by defendant-appellant Lawnlite. On May 23, 1972 while plaintiff was standing on the ladder painting his house, the ladder collapsed and plaintiff fell to the ground and, as a result thereof, sustained serious injury. Thereafter, plaintiff filed the instant action for damages against the defendant-appellants Sears Roebuck and Company and Lawnlite. The cause proceeded to a jury trial at the conclusion of which the jury entered a verdict in favor of the appellee in the amount of $130,000. Final judgment was entered thereon after denial of defendants’ post trial motions, including a motion for new trial. This appeal ensued.
Defendants first contend that plaintiff’s expert’s testimony was based on a demonstrably false assumption and therefore the case should be remanded for a new trial. We cannot agree.
As to this issue, the record reflects that in pretrial motions plaintiff requested drawings from which the subject ladder was constructed. In response thereto, defendant company sent plans for the 8, 10, 12 and 14 foot extension ladders which came to be known as the “Anderson drawings”, which at the onset of the trial were stipulated to as being authentic and ultimately admitted into evidence. Plaintiff’s expert witness studied these drawings and testified at the trial that the subject ladder did not conform to the specifications contained in Anderson drawing XC-18-33 with regard to the thickness of the metal used in the construction thereof. No objection thereto was made by defense counsel at that time. Subsequently, defense counsel discovered that plaintiff’s expert had been referring to the plan for the 14 foot ladder rather than the plan for the 8 foot ladder. Defendants’ experts testified that plaintiff’s expert had used the wrong plan and that the ladder was made according to specifications. Appellants having failed to make timely objection to the complained of expert testimony at the trial, they now are precluded from raising the same as error for the first time on appeal. See e. g. Zutell v. Sunrise Oldsmobile, Inc., Fla.App. 1971, 252 So. 2d 822. Further, the error on the part of plaintiff’s expert was caused in part by the negligence of the defendants in supplying plaintiff with the drawings and design data not only for the 8 foot ladder but the 10, 12 and 14 foot ladders and therefore appellants cannot now be heard to complain.
Defendant-appellants additionally contend that the trial court erred in refusing to grant their motion for new trial based upon the alleged improper remarks of plaintiff’s counsel made to the jury during the course of the trial and again during his closing argument.
Generally, if reversible error is predicated upon the alleged improper or inflammatory remarks of opposing counsel, objection thereto must be made at the time these remarks are presented to the jury so that the trial court may have the opportunity to rule upon the objection and at the same time to instruct the jury so as to remove the effect of the improper argument. See 32 Fla.Jur. Trial § 136 (1960) and cases cited therein. An examination of the record on appeal demonstrates that defense counsel failed to make timely objection to the remarks complained of and thus defendants are precluded from raising such objection for the first time on appeal.
We also have considered appellants’ remaining point on appeal and find it to be without merit.
Accordingly, the judgment herein appealed is affirmed.
Affirmed.
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The Murray-Ohio Mfg. Co. v. Patterson, 385 So. 2d 1035 (Fla. 5th DCA 1980)…ial motion came far too late to preserve the issue for review. See State v. Cumbie, 380 So. 2d 1031 (Fla.1980); Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); Bishop v. Watson, 367 So. 2d 1073 (Fla.3d DCA 1979); Sears, Roebuck & Go. v. McAfoos, 303 So. 2d 336 (Fla.3d DCA 1974); H. I. Holding Co. v. Dade County, 129 So. 2d 693 (Fla.3d DCA 1961). We find no other error, and the judgment below is therefore AFFIRMED. COBB and FRANK D. UPCHURCH, Jr., JJ., concur.…
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Rinker Materials Corp. & Liberty Mut. Ins. Co. v. Hill, 471 So. 2d 119 (Fla. 1st DCA 1985)…that it was founded on facts not in the record. Without such contemporaneous objection before the deputy, there is no basis for reviewing such issue on appeal. Tabasky v. Dreyfuss, 350 So. 2d 520 (Fla. 3d DCA 1977); Sears, Roebuck & Co. v. McAfoos, 303 So. 2d 336 (Fla. 3d DCA 1974); Lineberger v. Domino Canning Co., 68 So. 2d 357 (Fla.1953). All too often we find that attorneys in workers’ compensation proceedings remain silent during the hearing before the deputy when incompetent evidence or opinion testimo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zutell v. Sunrise Oldsmobile, Inc., 252 So. 2d 822 (Fla. 1st DCA 1971)