EVA KLEPPER, APPELLANT,
v.
J. C. PENNEY COMPANY, INC. AND BONNIE CAUDELL, APPELLEES
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In this tort case, a jury found in favor of defendants J.C. Penney Company and Bonnie Caudell in plaintiff's suit for false arrest, false imprisonment, malicious prosecution, and assault and battery. The trial judge inadvertently added a clause to a jury instruction that deviated from the previously approved form, but the appellate court affirmed because plaintiff's counsel failed to object at trial and no fundamental error was found.
The appellate court affirmed the judgment because plaintiff's counsel failed to object to the modified instruction at trial and failed to bring the error to the judge's attention so it could be rectified, and no fundamental error was found upon examination of the entire record.
[1] A party must object to an error in jury instructions at the time they are given to preserve the issue for appeal.
[2] Trial counsel has a duty to alert the trial judge to errors in jury instructions as they are read to the jury to allow for rectification.
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Join FLexlaw to unlock all legal intelligence“counsel neither made objection at the time it was given nor brought the error contained in the added clause to the attention of the trial judge so that he could rectify it”
Establishes that failure to timely object waives review of jury instruction errors
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Join FLexlaw to unlock all legal intelligencePlaintiff Eva Klepper brought suit against J.C. Penney Company, Inc. and Bonnie Caudell alleging false arrest, false imprisonment, malicious prosecuti…
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PER CURIAM.
This appeal is from a final judgment entered in favor of defendants after the jury found for them in a suit brought by plaintiff for false arrest, false imprisonment, malicious prosecution and assault and battery.
Plaintiff would have us reverse because, inter alia, the trial judge, during his reading of a series of instructions to the jury, added a clause to one of them and thereby deviated from the form adopted (albeit over plaintiff’s objection) by the judge at an earlier charge conference. Plaintiff complains now of fatal error in the instruction as given, but counsel neither made objection at the time it was given nor brought the error contained in the added clause to the attention of the trial judge so that he could rectify it. Furthermore, our examination of the entire record locates no fundamental error and the judgment of the lower court is necessarily affirmed.
We believe it will be helpful to remind the trial Bar of its responsibility to client and Bench alike to be attentive and alert during the jury charge. At the end of a trial it may happen that a judge who communicates with the jury and reads to them a long series of instructions would misread one, have an inadvertent slip of the tongue, or in a last moment reflection make some change in the previously adopted form of instruction. At such a time trial counsel has a special duty to his client and to the trial judge to read the instructions as the judge recites them and to aid in the prevention of the kind of error which occurred in the case sub judice by objecting to or pointing out the error. We have considered the other points raised by plaintiff and find no reversible error. AFFIRMED.
DOWNEY and ALDERMAN, JJ., and DANAHY, PAUL W., Jr., Associate Judge, concur.
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Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977)…the phraseology of the instruction that the defendants now assail on appeal. If the charge was erroneous, the error was induced, at least in part, by counsel for the defendants. In the recent case of Klepper v. J. C. Penney Co., Inc., Fla.App. 4th, 340 So. 2d 1170, 1976, the Court stated: “. . . (T)rial counsel has a special duty to his client and to the trial judge to read the instructions as the judge recites them and to aid in the prevention of the kind of error which occurred in the case sub judice by ob…
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Bialowas v. Nat'l R.R. Passenger Corp., 378 So. 2d 1288 (Fla. 3d DCA 1979)…f the record, briefs and argument of counsel have determined that no reversible error has been demonstrated. See, Ashley v. State, 370 So. 2d 1191 (Fla. 3d DCA 1979); Wheeler v. State, 362 So. 2d 377 (Fla. 1st DCA 1978); Klepper v. J. C. Penney Co., 340 So. 2d 1170 (Fla. 4th DCA 1976). The judgment appealed is affirmed. Affirmed.…
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Lynde R. Johnson v. Ind. Ins. Co., 349 So. 2d 854 (Fla. 3d DCA 1977)…PER CURIAM. Affirmed. See Foremost Dairies, Inc., of the South v. Cutler, 212 So. 2d 37 (Fla. 4th DCA 1968); Poitier v. State, 303 So. 2d 409 (Fla. 3d DCA 1974); Klepper v. J. C. Penney Company, Inc., 340 So. 2d 1170 (Fla. 4th DCA 1976).…
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