Thomason v. Gordon

782 So. 2d 896, 2001 WL 201489
CourtDistrict Court of Appeal of Florida
DecidedMarch 2, 2001
Docket5D00-4
StatusPublished
Cited by8 cases

This text of 782 So. 2d 896 (Thomason v. Gordon) 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
Thomason v. Gordon, 782 So. 2d 896, 2001 WL 201489 (Fla. Ct. App. 2001).

Opinion

782 So.2d 896 (2001)

Linda THOMASON, and Daniel Thomason, etc., Appellants,
v.
Irmalenna GORDON, Appellee.

No. 5D00-4.

District Court of Appeal of Florida, Fifth District.

March 2, 2001.
Rehearing Denied April 24, 2001.

*897 David B. Falstad, of Gurney & Handley, P.A., Orlando, for Appellants.

Rutledge M. Bradford, of Thompson & Bradford, L.C., Maitland, and Elizabeth C. Wheeler, of Wheeler & Wilkinson, LLP, Orlando, for Appellee.

PER CURIAM.

Linda Thomason ["Thomason"] appeals a jury verdict in the amount of $5,013.19 entered in her favor in an automobile negligence action. Thomason contends the verdict is inadequate and that she was prejudiced at trial by certain errors of the trial court. We agree that the lower court erred in failing to conduct the jury charge conference prior to closing arguments and in failing to give a concurring charge instruction.

As soon as the defense rested its case, the court directed the parties to proceed to *898 closing arguments without first holding a charge conference. Thomason protested that she needed to know what law to argue to the jury and that she wanted to show the verdict form to the jury during closing. The judge explained that he had asked counsel to meet in advance to agree on the verdict form and instructions, and because, in his view, counsel had not done as instructed, the parties would have to close without the jury instructions and verdict form. The charge conference was held after closing arguments took place.

Although not expressly made mandatory, Rule of Civil Procedure 1.470(b) appears to contemplate that the conference on jury instructions will occur prior to closing arguments:

(b) Instructions to Jury. Not later than at the close of the evidence, the parties shall file written requests that the court charge the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the charges to be given. At such conference all objections shall be made and ruled upon and the court shall inform counsel of such charges as it will give. No party may assign as error the giving of any charge unless that party objects thereto at such time, or the failure to give any charge unless that party requested the same. The court shall orally charge the jury after the arguments are completed and, when practicable, shall furnish a copy of its charges to the jury.

See Aetna Cas. & Sur. Co. v. Seacoast Transp. Co., 528 So.2d 480, 481 (Fla. 3d DCA 1988).

For obvious reasons, holding the charge conference prior to closing arguments is highly preferable, because "[o]ne of the purposes in having a conference on jury instructions before closing arguments is to allow the attorneys to be aware of the law so that they will be able to properly relate the law to the facts in their argument." Taylor v. State, 330 So.2d 91, 93 (Fla. 1st DCA 1976). See also Seckington v. State, 424 So.2d 194, 195 (Fla. 5th DCA 1983) ("One of the purposes of closing arguments is to give the attorneys the opportunity to tie together for the jury the law and the facts...."); King v. State, 642 So.2d 649 (Fla. 2d DCA 1994) (defendant was deprived of fair trial by denial of request to instruct on lesser offense supported by the evidence, though trial court gave instruction after it was too late for defense counsel to address issue in closing argument). In the ordinary case it is error to force a party to make closing argument prior to the jury charge conference.

During the charge conference, Thomason requested an instruction on both aggravation of a pre-existing injury and concurrent cause, based on the premise that there was evidence that Thomason had a pre-existing condition. Thomason argued that her pre-existing condition should be considered a concurrent cause with plaintiffs negligence, which warranted the giving of the instruction. The trial court refused to give the instruction on concurrent causes.

We agree that it was reversible error to deny her request for an instruction on concurrent causes, and that the failure to give this instruction in addition to an instruction on pre-existing conditions was reversible error. Several courts have recognized that where a defendant's negligence acts in combination with a plaintiff's physical condition to produce an injury, the concurring cause instruction of 5.1(b) is mandated. Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999) (trial court erred in failing to instruct the jury on concurrent cause where the evidence revealed that the negligent operation of the defendant's motor *899 vehicle combined with Ms. Esancy's pre-existing back condition to cause her injury). The standard jury instruction on aggravation of a pre-existing injury or defect is a damage instruction. Gross v. Lyons, 721 So.2d 304 (Fla. 4th DCA 1998), review granted, 732 So.2d 326 (Fla.1999), and decision approved, 763 So.2d 276 (Fla. 2000). That is, once a jury determines that the defendant's negligence caused in full or in part the plaintiff's injury, instruction 6.2(b) would permit the jury to assess damages against the negligent defendant for only that portion of the injury resulting from the aggravation or acceleration of the preexisting condition or the activation of a latent condition. It has repeatedly been held that to avoid any confusion concerning the jury's ability to hold a defendant liable where two or more causes join to produce an injury, a trial court should read the instruction on concurrent cause, in addition to the damage instruction on aggravation. See Esancy, supra; Dutcher v. Allstate Ins. Co., 655 So.2d 1217 (Fla. 4th DCA 1995); Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992), review denied, 620 So.2d 761 (Fla.1993).

REVERSED and REMANDED.

GRIFFIN, J., and JOHNSON, C.T., Associate Judge, concur.

HARRIS, J., dissents, with opinion.

HARRIS, J., dissenting.

Although I agree that it was error for the trial court to delay the charge conference until after closing argument, under the facts presented by this record I find no error. A party is only entitled to a fair trial, a trial unaffected by error below; there is no requirement for a perfect trial. Unless the delay in the charge conference caused prejudice, a reversal is not justified. See Aetna Casualty and Surety Co. v. Seacoast Transp. Co., 528 So.2d 480 (Fla. 3d DCA 1988). The prejudice urged herein by appellant's counsel is that he, not knowing which charges would be given, could not properly argue his concurring cause theory. Since I conclude that the failure to give a special concurring cause instruction was not reversible error for the reasons stated below, I dissent.

It was appellant's position at trial in her "go for broke" presentation, that she suffered no pre-existing injuries. All of her complaints, she told the jury, originated from and were solely caused by the actions of appellee in negligently causing this low impact collision.[1] In her direct testimony, appellant denied any prior problems with her back or neck and denied ever having any sleeping problems or any problems with headaches prior to the accident. She did admit at trial to having suffered a slip and fall in 1990, although she failed to properly reveal the incident in her answers to interrogatories, and claimed the treatment lasted for only two weeks, did not involve her back or neck, and that she had "forgotten" about it.

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Cite This Page — Counsel Stack

Bluebook (online)
782 So. 2d 896, 2001 WL 201489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomason-v-gordon-fladistctapp-2001.