City of Miami v. Kinser

187 So. 3d 921, 2016 Fla. App. LEXIS 4477, 2016 WL 1125833
CourtDistrict Court of Appeal of Florida
DecidedMarch 23, 2016
Docket15-0370
StatusPublished
Cited by4 cases

This text of 187 So. 3d 921 (City of Miami v. Kinser) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Miami v. Kinser, 187 So. 3d 921, 2016 Fla. App. LEXIS 4477, 2016 WL 1125833 (Fla. Ct. App. 2016).

Opinion

ROTHENBERG, J.

The City of Miami (“the City”) appeals the trial court’s denial of its motion for a new trial in a premises liability negligence suit after the plaintiff, Sheila Kinser (“Kin-ser”), received a favorable jury verdict. Because the cumulative effect of the objected-to improper statements did not deprive the City of a fair trial and the'jury verdict was not against the manifest weight of the evidence, we find no abuse of discretion in the denial of the City’s motion for a new trial. We therefore affirm the judgment below.

It was undisputed that Kinser injured her knee and hip when she fell through, a missing section of a dock while, she was walking backwards and sideways, pulling a boat towards the shore. Kinser sued the City for negligence, and in its answer, the City admitted that it was responsible for the maintenance of the dock and raised only one defense — that Kinser was comparatively negligent. ■'

The jury returned a verdict in favor of Kinser assigning 100% of the fault to the City. The City moved for a new trial, arguing that (1) the cumulative effect of the improper statements made by Kinser’s counsel during closing arguments deprived the City of a fair trial, and (2) the jury verdict apportioning no fault to Kinser was against the manifest weight of the evidence. The trial court denied the City’s motion for a new trial, and the City appealed.

Á motion for a new trial based on improper comments made during closing arguments should be granted if the comments were so highly prejudicial and inflammatory that the opposing party was denied.its right to a fair trial. Tanner v. Beck ex rel. Hagerty, 907 So.2d 1190, 1196 *923 (Fla. 3d DCA 2005). A motion for a new trial may also be granted where the jury verdict is against the manifest weight of the evidence. Weatherly v. Louis, 31 So.3d 803, 805 (Fla. 3d DCA 2009). However, when reviewing a trial court’s ruling on a motion for a new trial,

... an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by-,,the trial court, there can be no finding of an abuse of discretion.

Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999); see Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998).

During closing arguments, the City objected to several arguments made- by Kin-ser’s counsel,. which we divide into three categories: improper bolstering of a witness’s credibility, improper denigration of a party’s defense, and improper appeal to the conscience of the community. Although we conclude that the trial court did not abuse its discretion by determining that in this case the improper, objected-to statements made during closing arguments' were not so prejudicial as to deprive the City of a fair trial, we caution trial counsel that, under different facts and circumstances, and had the City objected to additional and perhaps more egregious comments made by Kinser’s counsel, a new trial may have been required. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1031 (Fla.2000) (setting the following high threshold before granting a new trial based on unobjeeted-to comments during closing arguments: “[W]e hold that before a complaining party may receive a new trial based on unobjected-to closing argument, the. party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”).

I. Imprqper Bolstering

It is well established that an attorney is not permitted to express a personal opinion bolstering the credibility of his witness. R. Regulating Fla. Bar 4~3,4(e) (providing that a “lawyer must not ... in trial, state a personal opinion about the credibility of a witness unless the statement is authorized by current rule or case law”); Airport Rent-A-Car, Inc. v. Lewis, 701 So.2d 893, 896 (Fla. 4th DCA 1997); Forman v. Wallshein, 671 So.2d 872, 875 (Fla. 3d DCA 1996); Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 258 (Fla. 1st DCA 1996); Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1158 (Fla. 5th DCA 1994). Nevertheless, during his closing argument, Kinser’s counsel improperly bolstered the credibility of Kinser’s testimony by stating:

Well, we heard about what Ms. Kinser told you, and, you know, there’s an instruction about the frankness and candor of witnesses and why they say what they say, and I want to talk about that a : little bit. * Ms. Kinser looked you in- the eye, she didn’t make anything up.

The City properly objected to this statement, and the trial court instructed' the jury to disregard it. Kinser’s counsel, however, Continued to bolster the credibility of Kinser’s testimony by stating:

She didn’t claim things were hurt that weren’t hurt. She acknowledged that she had problems with her feet, she acknowledged what, her limitations‘are, and she was very honest with you about everything she did.

The City objected, and the trial court instructed the jury again to disregard the *924 improper comment. The impact of these improper statements was enhanced because while Kinser’s counsel told the jury that Kinser was “very honest” and “she didn’t make anything up,” he insinuated that the City’s witnesses were dishonest— that they were paid to “make stuff up.”

And then you have their people who are paid, between them, almost $10,000, about half of what she paid treating her injuries, just to say, she’s not hurt, and if she is, it was something else. Can I have my check, please? It’s not close. It’s not close.
[[Image here]]
That’s another one of those Dr. Ramirez misdirection plays.
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But what do we know objectively from the reports of the films? Not doctors making stuff up ...

II. Denigrating the City for Asserting a Defense

It is also improper for a plaintiffs counsel to denigrate the defense for asserting a valid defense. See Carnival Corp. v. Pajares, 972 So.2d 973, 977 (Fla. 3d DCA 2007) (“The most grievous arguments made by [plaintiffs] counsel are those suggesting that [the defendant] acted improperly by defending [against plaintiffs] claims, and denigrating its defenses.”); State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377, 380 (Fla. 3d DCA 2005) (finding that the plaintiff “improperly insinuated that [the defendant] acted in bad faith in defending this action”).

The City argues that Kinser’s counsel improperly denigrated its defense by stating: “It’s another thing all together to say, we know we created this problem, but we did nothing wrong.

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Cite This Page — Counsel Stack

Bluebook (online)
187 So. 3d 921, 2016 Fla. App. LEXIS 4477, 2016 WL 1125833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-miami-v-kinser-fladistctapp-2016.