05 November

Sticky

The Violation of a Company’s Internal Policies Alone does Not Create a Duty Owed to a Third Party

Can internal policies of a company create a standard of care or duty to a plaintiff? Stated another way, can a company’s violation of its internal policies result in a breach of that company’s standard of care or duty to plaintiff? A recent case, Discount Tire Co. v. Tammy Bradford, as the Personal Representative of the Estate of Bradford, 2023 WL 7228186 (Fla. 5th DCA 2023), in analyzing case law with respect to this issue, answered this issue in the negative: a company’s internal policy’s do not alone create duties owed to third parties. In this case, a retail tire company was...

28 May

0 Comments

Sticky

Appellate Court Reversing Trial Court Granting Motion for New Trial

Posted by David Adelstein

in Appeal, Standard of Review

There are times a trial court may grant a motion for a new trial after the jury's verdict. Naturally, the party that received the benefit of the jury's verdict will appeal the trial court's ruling granting the motion for a new trial. A good example can be found in Smith v. Lyles, 48 Fla.L.Weekly D1079a (Fla. 6th DCA 2023), a personal injury case, where the trial court granted a new trial in favor of the plaintiff after the jury found the defendant was not liable. The trial court granted the new trial because it found: (a) the defendant had improper testimony;...

22 September

0 Comments

Sticky

Improperly Moving to Set Aside the Verdict

Posted by David Adelstein

in Appeal

Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict: (a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall...

29 September

0 Comments

Sticky

Appealing Correct Measure of Damages

Posted by David Adelstein

in Appeal, Evidence

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion. During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial. On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages. The issue...

29 April

0 Comments

Sticky

A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict

Posted by David Adelstein

in Appeal, Standard of Review

Juries do not always award huge jury verdicts in favor of plaintiffs in personal injury actions. Sure, sometimes they definitely do. But it is also true that sometimes they do not. Juries can find that the (i) defendant was not liable, (ii) the plaintiff was comparatively liable, or (iii) that the plaintiff's damages were relatively minor. As to the latter two points, this was the issue in Black v. Cohen, 43 Fla. L. Weekly D903e (Fla. 4th DCA 2018), involving an automobile accident, where the trial court granted plaintiff's motion for a new trial based on an inadequate jury verdict....

16 December

0 Comments

Sticky

New Trial Warranted for Prejudicially Inflaming the Jury

Posted by David Adelstein

in Trial Perspectives

Jury trials do contain a degree of theatrics, particularly when it comes to opening and closing statements. The objective is to persuasively demonstrate to the jury your theme of the dispute – what the evidence will show (in the opening statement) and what the evidence reveals that supports your theme and the application of the law (in the closing statement). This does not mean, however, that you can intentionally and prejudicially inflame the passions of the jury. Doing so will result in a new trial, and oftentimes, an unnecessary new trial. An example of this can be found in the case...

07 August

0 Comments

Sticky

Leading Questions Forming Basis of Appeal

Posted by David Adelstein

in Trial Perspectives

During a direct examination at trial, a party will always tiptoe on the fine line of asking the witness leading questions in order to elicit the desired testimony. Leading questions, in most circumstances, are objectionable during direct examination because it allows the lawyer asking questions to basically testify while leading the witness to the answer he or she is seeking. Look, a lawyer will ask leading questions if he/she can get away with it—until the trial court sustains objections. But, just because a trial court sustains an objection does not necessarily mean the lawyer will stop asking leading questions during direct...

05 November

0 Comments

Sticky

Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein

in Evidence

I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant). Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling...