Winn Dixie Stores, Inc. v. Estate of Castano

District Court of Appeal of Florida

Winn Dixie Stores, Inc. v. Estate of Castano

544 So. 2d 215, 14 Fla. L. Weekly 328, 1989 Fla. App. LEXIS 323, 1989 WL 6209

CourtDistrict Court of Appeal of Florida

DecidedJanuary 31, 1989

DocketNos. 87-2852, 88-1378 and 87-2653

StatusPublished

Cited by1 cases

This text of 544 So. 2d 215 (Winn Dixie Stores, Inc. v. Estate of Castano) 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.

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Winn Dixie Stores, Inc. v. Estate of Castano, 544 So. 2d 215, 14 Fla. L. Weekly 328, 1989 Fla. App. LEXIS 323, 1989 WL 6209 (Fla. Ct. App. 1989).

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Opinion

PER CURIAM.

Counsel for the plaintiff made prejudicial comments during closing argument in an eight-day negligence action. Although the remarks were improper, they were made in response to arguments of the defense, Gale v. State, 483 So.2d 53 (Fla. 1st DCA), rev. denied, 492 So.2d 1332 (Fla.1986), were not preserved for review by a timely and proper objection, White Constr. Co. v. DuPont, 455 So.2d 1026 (Fla.1984); Roadway Express, Inc. v. Dade County, 537 So.2d 594 (Fla. 3d DCA 1988), and were not so fundamental as to amount to a denial of due process, Pope v. Wainwright, 496 So. 2d 798 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). The incensed trial judge considered declaring a mistrial, sua sponte, but then denied motions for mistrial and for new trial made by the defendant, Winn Dixie. On review of the entire record, we cannot conclude that the trial court abused its discretion.

Plaintiff, the Estate of Pedro Castaño, cross-appeals two evidentiary rulings made by the court during the trial.

As proof that a violent criminal assault was foreseeable by the landlord, Perrine Plaza, and the employer-tenant, Winn Dixie, the plaintiff presented testimony of a security expert, as well as evidence of ninety-three violent crimes-to-the-person which had occurred in the immediate vicinity during a period of thirty months preceding the subject assault. The jury returned a verdict exonerating Perrine Plaza but finding Winn Dixie liable and awarding substantial damages. There is no showing that the limitations or restrictions placed on the number of experts permitted to testify, or [216]*216the type of prior crimes presented, affected the result reached by the jury, Anthony v. Douglas, 201 So.2d 917 (Fla. 4th DCA 1967), cert. denied, 210 So.2d 222 (Fla. 1968), or that the limitations were otherwise an abuse of discretion. Ritter v. Jimenez, 348 So.2d 659 (Fla. 3d DCA 1977); Stager v. Florida E. Coast Ry., 163 So.2d 15 (Fla. 3d DCA 1964), cert. discharged, 174 So.2d 540 (Fla.), cert. denied, 382 U.S. 878, 86 S.Ct. 162, 15 L.Ed.2d 119 (1965).

AFFIRMED.

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PER CURIAM.

Counsel for the plaintiff made prejudicial comments during closing argument in an eight-day negligence action. Although the remarks were improper, they were made in response to arguments of the defense, Gale v. State, 483 So.2d 53 (Fla. 1st DCA), rev. denied, 492 So.2d 1332 (Fla.1986), were not preserved for review by a timely and proper objection, White Constr. Co. v. DuPont, 455 So.2d 1026 (Fla.1984); Roadway Express, Inc. v. Dade County, 537 So.2d 594 (Fla. 3d DCA 1988), and were not so fundamental as to amount to a denial of due process, Pope v. Wainwright, 496 So. 2d 798 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). The incensed trial judge considered declaring a mistrial, sua sponte, but then denied motions for mistrial and for new trial made by the defendant, Winn Dixie. On review of the entire record, we cannot conclude that the trial court abused its discretion.

Plaintiff, the Estate of Pedro Castaño, cross-appeals two evidentiary rulings made by the court during the trial.

As proof that a violent criminal assault was foreseeable by the landlord, Perrine Plaza, and the employer-tenant, Winn Dixie, the plaintiff presented testimony of a security expert, as well as evidence of ninety-three violent crimes-to-the-person which had occurred in the immediate vicinity during a period of thirty months preceding the subject assault. The jury returned a verdict exonerating Perrine Plaza but finding Winn Dixie liable and awarding substantial damages. There is no showing that the limitations or restrictions placed on the number of experts permitted to testify, or [216]*216the type of prior crimes presented, affected the result reached by the jury, Anthony v. Douglas, 201 So.2d 917 (Fla. 4th DCA 1967), cert. denied, 210 So.2d 222 (Fla. 1968), or that the limitations were otherwise an abuse of discretion. Ritter v. Jimenez, 348 So.2d 659 (Fla. 3d DCA 1977); Stager v. Florida E. Coast Ry., 163 So.2d 15 (Fla. 3d DCA 1964), cert. discharged, 174 So.2d 540 (Fla.), cert. denied, 382 U.S. 878, 86 S.Ct. 162, 15 L.Ed.2d 119 (1965).

AFFIRMED.

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544 So. 2d 215, 14 Fla. L. Weekly 328, 1989 Fla. App. LEXIS 323, 1989 WL 6209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winn-dixie-stores-inc-v-estate-of-castano-fladistctapp-1989.

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