Metropolitan Dade County v. Zapata

601 So. 2d 239, 1992 Fla. App. LEXIS 5514, 1992 WL 109621
CourtDistrict Court of Appeal of Florida
DecidedMay 26, 1992
Docket91-1291
StatusPublished
Cited by16 cases

This text of 601 So. 2d 239 (Metropolitan Dade County v. Zapata) 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
Metropolitan Dade County v. Zapata, 601 So. 2d 239, 1992 Fla. App. LEXIS 5514, 1992 WL 109621 (Fla. Ct. App. 1992).

Opinion

601 So.2d 239 (1992)

METROPOLITAN DADE COUNTY, Appellant,
v.
Arnulfo ZAPATA, etc., et al., Appellees.

No. 91-1291.

District Court of Appeal of Florida, Third District.

May 26, 1992.

*241 Robert A. Ginsburg, County Atty., and Eric K. Gressman and Stephen J. Keating, Asst. County Attys., for appellant.

Haddad, Josephs, Jack & Gaebe and David K. Markarian, Coral Gables, for appellees.

Before BARKDULL, NESBITT and LEVY, JJ.

NESBITT, Judge.

Metropolitan Dade County (the County), appeals the final judgment rendered on a jury verdict in favor of appellee, Arnulfo Zapata, as personal representative of Mario Zapata (decedent), in a wrongful death action arising from a drowning accident which occurred in May 1987. The jury returned a verdict allocating 90% of the liability to the County and 10% to decedent. We reverse, and remand to the trial court for a new trial.

On May 17, 1987, decedent, his cousin Julio Perez, and their friend Bacchur Issa, went to Crandon Beach Park, which was attended by four lifeguards. The three boys walked in shallow water out to a sandbar approximately seventy-five yards off shore. Upon commencing their return to shore, they stepped into a drop off between six and eight feet deep, where, within minutes, Mario Zapata drowned. Decedent's representative brought the present action claiming that no lifeguard came to decedent's rescue until it was too late and further that, although known by the County to be a dangerous area, no signs were posted warning of the drop off.

Decedent's companion Julio Perez testified that decedent was a weak swimmer and that when he started drowning a struggle had ensued as Perez and Issa attempted to rescue him. Perez further testified that although he and Issa called for help and splashed for approximately two minutes, no lifeguard responded. The testimony of all four lifeguards on duty at the time was that all were attentive on the day of the drowning, and that none had noticed any signs of distress requiring immediate action. The County argued that because there were no obvious signs of distress, the death must have been the result of a sudden or silent drowning, and thus no breach of duty owed by the County to the swimmers occurred.

The County claims the trial court erred in: (1) allowing a "golden rule" closing argument; (2) precluding argument or comment regarding assumption of the risk; and (3) commenting on the evidence. Further, the County asserts that the trial court erroneously admitted into evidence: (1) the results of a failed mock drowning drill; (2) a lifeguard training film; and (3) a photograph depicting what a lifeguard's perception of a drowning person would have been from the lifeguard tower located closest to where decedent was found. Because we find the golden rule argument was improperly permitted, we reverse the order under review and remand for retrial. Further, in order to aid the trial court upon retrial, we address the additional points raised by appellant.

First, a golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence. Simmonds v. Lowery, 563 So.2d 183, 184 (Fla. 4th DCA 1990); Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989); Schreidell v. Shoter, 500 So.2d 228, 233 (Fla. 3d DCA 1986), review denied, 511 So.2d 299 (Fla. 1987). Such an argument is improper and constitutes reversible error. Schreidell, 500 So.2d at 233. However, to be impermissible the argument must strike at the sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation. Shaffer v. Ward, 510 So.2d 602, 603 (Fla. 5th DCA 1987).

Both plaintiffs and defendant had divided their closing statements between the issues of liability and damages. Moreover, in both plaintiffs' and defendant's closing, one attorney had discussed liability, while a different attorney had discussed *242 damages. During plaintiffs' rebuttal, the attorney who had discussed liability stated:

... . Influential family. It's an optometrist. And he has to talk about damages. He doesn't have to talk about damages. Oh, they are all so sure about their defense in this case, they won't talk about damages. The best thing to do is get up and say, ladies and gentlemen, you know better.
This didn't happen the way the Plaintiff says, I'm not even going to talk about damages.
THE CLERK: Time.
[Plaintiff's Attorney]: Walk in their shoes.

(Emphasis added).

Because the comment was made by the attorney who had previously discussed liability, plaintiff argues on appeal that the attorney was not asking the jury members to put themselves in the shoes of decedent's parents for purposes of assessing damages. However, when looked at in the context of the lines quoted above, we find that the comment was sufficiently prejudicial to constitute harmful error warranting a new trial.

Next, we agree with the County's argument that it was error to prohibit defense counsel from using the words "assumption of risk," and that the court's prohibition greatly handicapped its comparative negligence argument. The trial court had granted plaintiffs' motion in limine prohibiting defense counsel from arguing the theory of "assumption of risk," and advised defense counsel that if the words "assumption of risk" were used in asking a witness a question, any objection would be sustained.

It is true that under the present facts the affirmative defense of assumption of risk is merged into the principles of comparative negligence. Blackburn v. Dorta, 348 So.2d 287, 293 (Fla. 1977); see also Mazzeo v. City of Sebastian, 550 So.2d 1113, 1115 (Fla. 1989). However, although it would have been error to argue the theory of assumption of risk, the trial court should not have prohibited argument that the decedent contributed to his injury by assuming a risk he was aware of, when defense counsel introduced evidence demonstrating that decedent was a weak swimmer. Since we cannot say that any use of these words is barred, these words may be permitted if properly used.

Next, we agree with plaintiffs that the trial judge did not impermissibly comment on the evidence. During direct examination of the County's medical expert, the court ruled that a response concerning silent drowning had to be stricken, noting that it was predicated upon facts not in evidence:

... . You can ask him to give an opinion, based upon anything he has, anything he's read, but not on the assumption of facts that are not in evidence. Next question.

A careful review of the record has shown that at the time this comment was made, there were no facts in evidence to support the silent drowning theory and thus the trial judge's comment was appropriate based on the facts before him.

Next, we find no error occurred in the admission of testimony concerning a mock drowning drill, where the County opened the door to such testimony. Lifeguard Victor Davalos, over defense counsel's objection, testified on redirect examination about a mock drowning drill that occurred subsequent to decedent's drowning. Davalos testified that, depending on the season, such drills are held often and are used as a training technique.

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Cite This Page — Counsel Stack

Bluebook (online)
601 So. 2d 239, 1992 Fla. App. LEXIS 5514, 1992 WL 109621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-dade-county-v-zapata-fladistctapp-1992.