Mauro v. Deer Park Spring Water, Inc.

District Court of Appeal of Florida

Mauro v. Deer Park Spring Water, Inc.

667 So. 2d 416, 1996 Fla. App. LEXIS 349

District Court of Appeal of Florida·Decided January 17, 1996·No. Nos. 93-2953, 94-1636·Published

Opinion

PER CURIAM.

Appellant, Damon Mauro, appeals an order granting a new trial in favor of appellees. We affirm the order granting a new trial, as the record fails to show the trial court abused its discretion in granting a new trial. Baptist Memorial Hosp., Inc. v. Bell, 384 So.2d 145 (Fla.1980); Currie v. Palm Beach County, 578 So.2d 760 (Fla. 4th DCA 1991); Bern v. Spring, 565 So.2d 809 (Fla. 3d DCA 1990); Staib v. Ferrari, Inc., 391 So.2d 295 (Fla. 3d DCA 1980). However, on re-trial, the trial court should admit evidence of both parties’ alcohol consumption if proferred, as this issue is relevant to the cause of the accident. § 90.402, Fla.Stat. (1995); see Brackin v. Boles, 452 So.2d 540 (Fla.1984); Tracton v. City of Miami Beach, 616 So.2d 457 (Fla. 3d DCA 1992), rev. denied sub nom. Siedentopf v. Tracton, 626 So.2d 207 (Fla.1993); Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So.2d 1341 (Fla. 4th DCA 1990), rev. denied, 577 So.2d 1328 (Fla.1991). Additionally, appellees can amend their answer to include the seatbelt defense on re-trial. In all other respects, the trial court’s order is affirmed.

Affirmed with instructions.

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PER CURIAM.

Appellant, Damon Mauro, appeals an order granting a new trial in favor of appellees. We affirm the order granting a new trial, as the record fails to show the trial court abused its discretion in granting a new trial. Baptist Memorial Hosp., Inc. v. Bell, 384 So.2d 145 (Fla.1980); Currie v. Palm Beach County, 578 So.2d 760 (Fla. 4th DCA 1991); Bern v. Spring, 565 So.2d 809 (Fla. 3d DCA 1990); Staib v. Ferrari, Inc., 391 So.2d 295 (Fla. 3d DCA 1980). However, on re-trial, the trial court should admit evidence of both parties’ alcohol consumption if proferred, as this issue is relevant to the cause of the accident. § 90.402, Fla.Stat. (1995); see Brackin v. Boles, 452 So.2d 540 (Fla.1984); Tracton v. City of Miami Beach, 616 So.2d 457 (Fla. 3d DCA 1992), rev. denied sub nom. Siedentopf v. Tracton, 626 So.2d 207 (Fla.1993); Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So.2d 1341 (Fla. 4th DCA 1990), rev. denied, 577 So.2d 1328 (Fla.1991). Additionally, appellees can amend their answer to include the seatbelt defense on re-trial. In all other respects, the trial court’s order is affirmed.

Affirmed with instructions.

Mauro v. Deer Park Spring Water, Inc., 667 So. 2d 416, 1996 Fla. App. LEXIS 349 (Fla. Ct. App. 1996).

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