Keith v. Russell T. Bundy & Assoc.

495 So. 2d 1223, 11 Fla. L. Weekly 2209
CourtDistrict Court of Appeal of Florida
DecidedOctober 16, 1986
Docket85-1383
StatusPublished
Cited by19 cases

This text of 495 So. 2d 1223 (Keith v. Russell T. Bundy & Assoc.) 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
Keith v. Russell T. Bundy & Assoc., 495 So. 2d 1223, 11 Fla. L. Weekly 2209 (Fla. Ct. App. 1986).

Opinion

495 So.2d 1223 (1986)

Theda KEITH, Appellant/Cross-Appellee,
v.
RUSSELL T. BUNDY & ASSOCIATES, INC., Appellee/Cross-Appellant.

No. 85-1383.

District Court of Appeal of Florida, Fifth District.

October 16, 1986.

*1224 Glen E. Wieland, Ronnie H. Walker of Walker, Miller & Ketcham, P.A., Orlando, for appellant/cross-appellee.

John N. Bogdanoff of Haas, Boehm, Brown, Rigdon, Seacrest & Fisher, P.A., Daytona Beach, for appellee/cross-appellant.

COBB, Judge.

This appeal arises from an incident on October 6, 1980, when appellant, Theda Keith (Keith), suffered injuries to her hand, including the loss of a finger, while operating a roll-slicing machine at the Golden Loaf Bakery (Golden Loaf) in Orlando. The slicer was originally manufactured by Alto Corporation (Alto), and was subsequently acquired by Russell T. Bundy & Associates, Inc. (Bundy), a dealer in used bakery equipment, who in turn sold it to Mrs. Keith's employer. The plaintiff ultimately filed suit against Alto and Bundy, alleging counts in negligence and strict liability. The complaint alleges that Bundy was negligent in selling the slicer because it was in a dangerous and defective condition, as it was subject to clogging and was not provided with sufficient safety guards. The complaint also alleges that Bundy failed to provide sufficient warning and instruction on the machine. In the strict liability count, the complaint alleges that Bundy knew or should have known of the dangerous nature of the machine, but that it failed to make the machine safe.

The trial jury reached a verdict that both Alto and Bundy placed the slicer on the market with a defect which was the legal cause of the damage to the plaintiff, and that both defendants were negligent. The jury found no negligence on the plaintiff's part, and awarded her $200,000, finding both Bundy and Alto 50% negligent. A final judgment was entered pursuant to this verdict.

Both Alto and Bundy filed motions for new trial and/or for judgment in accordance *1225 with directed verdict. The trial court denied all motions except a motion for remittitur filed by Alto. In his order, the trial judge states:

IT IS FURTHER ORDERED AND ADJUDGED that the Motion for remittitur filed by Defendant, ALTO CORPORATION, is hereby granted in the amount of one-third (1/3) of the jury verdict as the court finds that the jury should have found the Plaintiff comparatively negligent to the extent of at least one-third (1/3); or in the alternative, the Plaintiff, THEDA KEITH, shall have the right to a new trial of this matter on the issue of liability only.

Appellant Keith timely filed a notice of appeal from this order, and Bundy has cross-appealed on various points: (1) denial of a directed verdict on the strict liability count against it; (2) denial of a requested instruction on misuse of the machine by Keith; (3) denial of its requested instruction that the jury consider an "as-is" disclaimer relative to Bundy's duty to the buyer; and (4) denial of a new trial based on improper jury argument by plaintiff's counsel.[1]

Keith contends the trial court erred in ordering a remittitur of one-third of the total verdict based on its finding that "the jury should have found the plaintiff comparatively negligent to the extent of at least one-third." Bundy does not claim that the trial court was correct in ordering a remittitur but, rather, contends that the trial court's alternative grant of a new trial on liability was correct based on a finding that the jury's failure to find any comparative negligence was against the manifest weight of the evidence and that improper remarks made by plaintiff's counsel influenced the jury.

A trial judge may not use the device of a new trial order conditioned on a remittitur to increase a jury's determination of the plaintiff's contributing negligence. Cooper Transportation, Inc. v. Mincey, 459 So.2d 339 (Fla. 3d DCA 1984), review denied, 472 So.2d 1181 (Fla. 1985); St. Pierre v. Public Gas Co., 423 So.2d 949 (Fla. 3d DCA 1982). A remittitur of part of the amount recovered cannot cure a verdict which is contrary to the law or not sustained by the evidence as to any issue other than the measure of damages. Marson v. Dadeland Rent-A-Car, Inc., 408 So.2d 245 (Fla. 3d DCA 1981). The rationale behind the rule which prevents the court's alteration of the jury's apportioning of negligence is that the question of apportioning is one that is peculiarly within the province of the jury. Akermanis v. Sea-Land Service, Inc., 688 F.2d 898 (2d Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983). See also Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla. 1986).

In the instant case, it was clearly error for the trial judge to reduce the verdict by one-third based on his determination that the plaintiff should have been found negligent. The remittitur must be reversed. The question remains, however, as to whether the alternative relief of a new trial on the issue of liability is correct.

A motion for new trial is directed to the sound, broad discretion of the trial judge and his ruling thereon should not be disturbed absent a clear showing of abuse. If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 1981). It is the duty of the trial court to grant a new trial where either the verdict is against the manifest weight of the evidence, the jury has been deceived as to the force and credibility of the evidence, or the jury has been influenced by considerations outside the record. However, a trial court must not permit itself to become a seventh juror. Papcun v. Piggy Bag Discount Souvenirs, Food and Gas Corp., 472 So.2d 880 (Fla. 5th DCA 1985).

*1226 An order for a new trial must specify the specific grounds for such grant. The purpose of the requirement of articulating reasons is to allow the appellate court to properly determine whether judicial discretion has been abused. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978). Florida Rule of Civil Procedure 1.530(f) specifically provides that if an order does not state specific grounds, the appellate court "shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial." This provision is mandatory. See Prime Motor Inns, Inc. v. Waltman, 480 So.2d 88 (Fla. 1985).

In the instant case, the order does not specifically state that the verdict was against the manifest weight of the evidence or that the jury was deceived or influenced; rather, the order merely requires a remittitur or new trial on liability because "the court finds that the jury should have found the plaintiff comparatively negligent to the extent of at least one-third (1/3)." This order, when read in conjunction with the court's comments during the hearing on new trial, shows that the basis of the ruling was the court's determination that the finding of zero percent negligence for the plaintiff was incorrect. Under these circumstances, the reason for the grant of a new trial on liability is apparent, and relinquishment of jurisdiction would be a useless act. See Zambrano v. Devanesan, 484 So.2d 603 (Fla. 4th DCA 1986) (court held Rule 1.530 inapplicable where the reasons for granting a new trial appear on the record).

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Bluebook (online)
495 So. 2d 1223, 11 Fla. L. Weekly 2209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-russell-t-bundy-assoc-fladistctapp-1986.