Roseman v. Town Square Ass'n, Inc.

810 So. 2d 516, 2001 WL 1540505
CourtDistrict Court of Appeal of Florida
DecidedMarch 13, 2002
Docket4D00-1072
StatusPublished
Cited by12 cases

This text of 810 So. 2d 516 (Roseman v. Town Square Ass'n, 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
Roseman v. Town Square Ass'n, Inc., 810 So. 2d 516, 2001 WL 1540505 (Fla. Ct. App. 2002).

Opinion

810 So.2d 516 (2001)

Mindy ROSEMAN, Appellant,
v.
TOWN SQUARE ASSOCIATION, INC., a Florida corporation, Appellee.

No. 4D00-1072.

District Court of Appeal of Florida, Fourth District.

December 5, 2001.
Opinion on Denial of Rehearing March 13, 2002.

*518 Dan Cytryn of Law Offices Dan Cytryn, P.A., Tamarac, for appellant.

Richard A. Sherman and Rosemary B. Wilder of Law Offices of Richard A. Sherman, P.A., and R. David Ravine of Law Offices of Robert F. Tacher, Fort Lauderdale, for appellee.

ON MOTION FOR REHEARING

WARNER, J.

We grant the motion for rehearing and clarification. We withdraw our previously issued opinion and substitute the following in its place.

In her appeal from a judgment in favor of appellee condominium association in a premises liability case, appellant contends that the trial court erred in bifurcating the issues and trying only liability to the jury first. She also alleges error in the trial court's refusal to permit her to offer evidence of subsequent repairs, refusal to permit appellant's expert to testify regarding procedures that the condominium association should have implemented with respect to the premises, and failure to give a particular jury instruction. We affirm on all issues, holding that the trial court did not abuse its discretion in granting the bifurcation, refusing to permit certain testimony, and denying the requested jury instruction which was not supported by the pleadings or the evidence.

Appellant, Mindy Roseman, claimed to have suffered injuries when the front door at appellee's condominium complex closed quickly, striking her on the back. Specifically, she alleged that the door was not properly maintained and that appellee *519 failed to warn her of this dangerous condition. Prior to trial, appellee moved for bifurcation of liability and damages, alleging that bifurcation would conserve judicial resources. In the motion, it noted that Roseman had listed thirty-two witnesses on damages, with nine being experts. Only four experts were listed on liability. The trial court granted appellee's request, ordering that both portions would be tried before the same jury. On Roseman's motion to clarify, the court directed that the jury would determine whether "there was negligence on the part of Town Square Association which was a legal cause of the door striking Mindy Roseman." Although Roseman later moved for rehearing on the issue, it does not appear that the issue was addressed again.

At a pretrial hearing, Roseman proffered the testimony of an expert in condominium management. He was prepared to render opinions on whether appellee should have placed a written notice on the door stating the door should not be adjusted and whether appellee should have ensured the door was closing at a safe pace. The court determined that these were not matters of expert opinion but were matters within the common knowledge of the jury. However, Roseman was free to argue such theories to the jury.

During trial, Roseman called several witnesses who either visited or lived at the condominium complex. Their testimony established that the door was heavy and "pretty much slammed closed." Roseman also called a door expert who conducted several tests on the closing speed of the door and opined that the door closing mechanism was set at a speed that caused it to close too quickly. In addition, Roseman called Roger Tuttle, a locksmith who performed work on the door approximately eight months after the accident. In a proffer outside the presence of the jury, Tuttle stated that he performed adjustments on the "door closer" on several occasions thereafter. He also stated that he suspected the condominium residents were adjusting the door, so he put a sticker over the screws. When he returned for additional work, he noticed that the stickers had been removed or penetrated. One of the members of the condominium's board of directors told Tuttle that he had experienced continuous problems with the door.

After the proffer, the trial court ruled that Tuttle could not testify that he suspected the residents were adjusting the door screws because Tuttle could not testify that he saw them adjust it before the accident. Tuttle also was not permitted to testify about his own adjustments to the door after the accident. However, he was allowed to testify as to the director's statement about the door problems. Later, appellee read portions of the director's deposition to the jury which indicated the director was not aware of whether the door closer had been replaced. Based upon this statement, Roseman contended that appellee had opened the door to evidence of subsequent repairs. Although the trial court disagreed, it told Roseman that she could use such evidence to impeach the director's testimony that no repairs were made.

At the close of the trial, the trial court read the standard jury instruction on premises liability and refused to include Roseman's requested instruction that the jury should determine whether appellee negligently created a dangerous condition. The case was submitted to the jury, which returned a verdict finding no liability on behalf of appellee.

Bifurcation

Florida Rule of Civil Procedure 1.270(b) governs the bifurcation of trials and provides: "The court in furtherance of convenience or to avoid prejudice may order *520 a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues." Roseman makes a broad argument that bifurcation should not be permitted in personal injury cases, except in rare circumstances, and requests this court to certify this question to the supreme court as one of great public importance.

Cases involving bifurcation make two principles of law evident. First, the trial court's decision to bifurcate is subject to an abuse of discretion standard of review. See Microclimate Sales Co. v. Doherty, 731 So.2d 856, 858 (Fla. 5th DCA 1999); Maris Distrib. Co. v. Anheuser Busch, Inc., 710 So.2d 1022, 1024 (Fla. 1st DCA 1998); Hardee Mfg. Co. v. Josey, 535 So.2d 655, 656 (Fla. 3d DCA 1988). Second, "bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party." Microclimate Sales Co., 731 So.2d at 858; see also Hardee Mfg. Co., 535 So.2d at 656 (holding there is no abuse of discretion in denying a motion to bifurcate liability and damages in a personal injury case where "factors concerning the cause and nature of the injuries would, unavoidably, have been adduced at a separate trial on liability").

Where a court has disapproved bifurcation in a personal injury case, it has been grounded on the necessity to have evidence of injury to prove or explain some issue in the liability trial. See, e.g., Scandinavian World Cruises Bah., Ltd. v. Barone, 573 So.2d 1036, 1037 (Fla. 3d DCA 1991). In Barone, the court held that bifurcation was improper because the plaintiff was prejudiced on the issue of liability. During the liability trial, the trial court excluded evidence that the plaintiff suffered an organic brain injury as a result of the accident. This evidence "was necessary to explain certain confusing and inconsistent testimony of the plaintiff, including a glaring inconsistency as to where the plaintiff had slipped and fallen on the defendant's cruise ship." Id.

Unlike Barone,

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Cite This Page — Counsel Stack

Bluebook (online)
810 So. 2d 516, 2001 WL 1540505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roseman-v-town-square-assn-inc-fladistctapp-2002.