Muhammad v. Toys" R" US, Inc.

668 So. 2d 254, 1996 WL 63246
CourtDistrict Court of Appeal of Florida
DecidedFebruary 15, 1996
Docket95-365
StatusPublished
Cited by19 cases

This text of 668 So. 2d 254 (Muhammad v. Toys" R" US, Inc.) 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
Muhammad v. Toys" R" US, Inc., 668 So. 2d 254, 1996 WL 63246 (Fla. Ct. App. 1996).

Opinion

668 So.2d 254 (1996)

Murad Rashid MUHAMMAD, as natural guardian of Muharram Muhammad, Appellant,
v.
TOYS "R" US, INC., Appellee.

No. 95-365.

District Court of Appeal of Florida, First District.

February 15, 1996.

*255 Robert M. Loehr of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for Appellant.

Thomas R. Jenkins of Bozeman, Jenkins & Matthews, P.A., Pensacola, for Appellee.

MICKLE, Judge.

Appellant Murad Rashid Muhammad (Muhammad), as natural guardian of Muharram Muhammad, appeals from a jury verdict and judgment rendered in favor of appellee, Toys "R" Us, Inc. (Toys "R" Us), in an action for negligence and products liability. Muhammad claims, and we agree, that he is entitled to a new trial on the grounds that improper statements and inflammatory remarks uttered by counsel for Toys "R" Us during closing argument and voir dire exceeded the bounds of propriety, prejudicially influencing the jury and negating a fair trial. We reverse *256 the judgment and remand for a new trial.

This case arises from injuries suffered by Muhammad's seven-year-old son, Muharram, while he was riding a bicycle purchased from Toys "R" Us. Muhammad sued Toys "R" Us alleging negligence in the assembly of the bicycle's brakes and strict liability for the sale of a defective product. Toys "R" Us raised numerous affirmative defenses, one being that the injuries were a result of the actions of a non-party, namely, the foreign manufacturer of the bicycle and/or the brake pads. Following a lengthy trial, the jury returned a verdict finding that Toys "R" Us did not sell a defective bicycle and finding no negligence on the part of Toys "R" Us that was the legal cause of the damages sustained. A motion for new trial, predicated in part on the prejudicial effect of the improper comments and closing argument of defense counsel, was denied.

As his first point on appeal, Muhammad claims that opposing counsel's remark to the jury venire suggesting the possibility of a settlement between Muhammad and the non-party manufacturer constituted reversible error. During voir dire, counsel for Toys "R" Us made the following statement:

... if we show that a Korean manufacturer made some defective brakes that we never would have checked, that looked fine when the bike was brought out, if we can show that may have contributed to this down hill accident to a boy who had been riding the bike for three days—if we can show that the Korean manufacturer may have been at fault, is anyone going to have any problems in apportioning fault to the Korean manufacturer?
Does everyone realize that they could have—they may have already settled with the manufacturer?

Muhammad's attorney immediately objected. During a bench conference, counsel for Toys "R" Us admitted he knew there had been no such settlement. The trial court issued the following instruction to the jury:

Ladies and Gentlemen, the statement that was just made a minute ago concerning you don't know if the plaintiffs have settled this thing against some Korean manufacturer, that is not an issue in this case. It is simply not an issue. It has nothing to do with this case, zero to do with this case. And the only reason that it might be a factor later on is when you apportion damages. That person is not even a party. That entity is not even a party to this lawsuit. So what he said to you, you should disregard completely, completely.

Section 768.041(3), Florida Statutes (1993), prohibits a party from disclosing to the jury that a settlement has been made with an "empty chair" (non-party responsible for plaintiff's injuries). Black v. Montgomery Elevator Co., 581 So.2d 624 (Fla. 5th DCA 1991); Henry v. Beacon Ambulance Service, Inc., 424 So.2d 914 (Fla. 4th DCA 1982) (testimony as to the fact of a settlement is inadmissible and if allowed warrants a new trial). Herein, even had Muhammad settled with the manufacturer, it would have been completely inappropriate to disclose this fact to the jury. We believe that counsel's comments were patently prejudicial and may have influenced the jury to return a verdict in favor of Toys "R" Us. See Taylor Imported Motors, Inc. v. Armstrong, 391 So.2d 786 (Fla. 4th DCA 1980) (but for the suggestion created by evidence of settlement, record might conceivably support a result contrary to that reached). Given the close question of negligence, and considering that the curative instruction provided by the court was insufficient to counteract the prejudicial effect of counsel's improper comment and may well have served to further mislead the jury, we find that counsel's remark constituted reversible error, despite the failure of Muhammad's attorney to move contemporaneously for a mistrial or to strike the jury panel. See Henry v. Beacon Ambulance Service.

We turn now to the closing arguments of counsel for Toys "R" Us. Set forth below are excerpts of the various expressions of personal opinion and improper attacks on the credibility of witnesses. The first objectionable comments emerged early in closing argument when counsel discussed the damage amount requested by Muhammad. Voicing disagreement with the figures suggested *257 by Muhammad's attorney, counsel stated "I think that's way too much based on what I've observed and not what—." An objection on the basis that counsel was interjecting his personal opinion was sustained.

Next, defense counsel discussed the photographs introduced as exhibits by the plaintiff, depicting the hill down which Muharram was riding when the accident occurred. Specifically, counsel stated: "This is not a hill. That doesn't depict a hill that's so steep that he had to stop and get up on ... I don't think this is a fair—." An objection to this comment was sustained and the court warned defense counsel to keep his personal beliefs and opinions to himself.

Next, counsel reminded the jury of the evidence elicited at trial that Mrs. Muhammad had returned to Toys "R" Us shortly after Muharram's accident and had purchased a second bicycle, this one for Muhammad. With regard to this evidence, counsel related the following personal anecdote about his wife and his daughter Dora:

I'm going to tell you a little story. My wife loves to shop at Dillard's. About a year ago Dora (phonetic), the one I told you never gave us any problems, she's shopping. I'm with my wife. And she's kind of in tears. You could tell she was upset. She's 11 years old. I asked, you know what's wrong. Well, Dora had a purse that she bought at Dillard's two weeks before. One of the clerks had accused her, questioned her, thinking that she had stolen it. The clerk wasn't being mean. It was an accident. You know, it looked like the one she had. Well, let me tell you something, I seen [sic] something that is the most powerful thing you could ever see, and that's a mother's protection for her child. My wife is one of the sweetest, most demure persons. It was nasty. She grabbed my daughter. She went and she said—

Plaintiff's counsel interposed an objection, which the trial judge sustained, directing counsel to make his point, following which defense counsel added the following:

The point is my wife has not gone back to Dillard's for a year. Do you think if Mr. Muhammad, if Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
668 So. 2d 254, 1996 WL 63246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muhammad-v-toys-r-us-inc-fladistctapp-1996.