SUPREME COURT UPHOLDS THE REORGANIZATION AND MODIFICATION OF THE STANDARD JURY INSTRUCTION BOOK IN CIVIL CASES
In Re: Standard Jury Instructions in Civil Cases, 35 Fla. L. Weekly S149 (Fla. March 4, 2010):
The court explained how the reorganization of the standard jury civil instructions is now based upon the delineation of separate sections which includes oaths, preliminary instructions, evidence instructions, substantive instructions, damages, general substantive instructions, closing instructions and supplemental matters. The book is broken down into substantive areas (i.e., general negligence, professional negligence, products liability, insurer’s bad faith, defamation, malicious prosecution, false imprisonment, tortious interference with business relationships, misrepresentation, outrageous conduct causing the severe emotional distress, civil theft, contribution among tortfeasors, claims for PIP benefits, intentional torts exception to work compensation immunity and unlawful retaliation).
The basic template used in the reorganization includes an introduction instruction, an instruction with a simple summary of the case, instructions with the rules, and instructions on the issues with the applicable burden of proof. The substantive sections generally include instructions covering areas for summary of claims, greater weight of the evidence, clear and convincing evidence, legal cause defense issues, etc.
Under the amended instructions, a trial court may choose in its discretion to instruct the jury at the beginning of the case as to substantive matters before the introduction of evidence. The court authorized introductory instructions, allowing the decision as to the timing to rest with the trial judge.
Interestingly, the court did not accept the committee’s redefinition of the greater weight of the evidence instruction. Instead, the court wanted to retain the original instruction.
However, the court did accept the proposed substantive changes to a number of the instructions. The court authorized for publication and use the reorganization and modification of the standard jury instructions, and noted which substantive matters it did not accept. Obviously, these will not be included when it is published.
Importantly, the court did remind litigants that it was not expressing any opinion as to the correctness of the instructions. It reminded all interested parties that the authorization of the book does not foreclose on the possibility of requesting additional or alternative instructions or contesting the legal correctness. Of course, this seems to clash with recent law urging trial courts to use the standard instructions.
WHILE TRIAL COURT MAY HAVE ABUSED ITS DISCRETION IN DENYING ADMISSION OF EVIDENCE IN THE PRODUCTS LIABILITY CASE, THE ERROR WAS HARMLESS BECAUSE THE JURY COULD HAVE BELIEVED THAT THE UNSAFE PRODUCT WAS NOT IN THE PLAINTIFF’S SYSTEM AT THE TIME HE HAD A STROKE
Webster v. Body Dynamics, 35 Fla. L. Weekly D440 (Fla. 1st DCA February 24, 2010):
The plaintiff, at the time of the incident a 26 year-old University student, suffered a stroke after taking certain dietary supplements containing ephedrine. He sued the manufacturers/distributors/sellers of the product for negligent failure to warn.
The plaintiff had testified that he took these ephedrine-based supplements twice a day for approximately four months. Still, neither his blood nor his urine yielded any evidence of ephedrine present in his system during the pertinent time. There was also evidence that when young people suffer strokes, physicians often have no idea why. One of the treating physicians concluded this was one of those cases.
Plaintiff attempted to admit evidence that the FDA banned ephedrine products six years after this accident. The judge refused to allow him to admit the 135 page document into evidence, and would not let the evidence come in in any form.
The First District found that it was likely error for the trial court not to admit this evidence. However, it found the error to be harmless because the plaintiff did not demonstrate it was reasonably probable that a result more favorable to him would have been reached had the error not been committed. Under these facts, the court found, there was no evidence of ephedrine in the plaintiff’s system, and the court found the jury could have reasonably concluded that he was one of the 40% of young people who have an unexplained stroke. The court also noted that there was evidence that the FDA had banned these supplements (it was just that the FDA report itself did not come into evidence).
On 2-1 ruling, the court refused to reverse the defense verdict.
SLEEPING IS A RACE-NEUTRAL REASON FOR CHALLENGING A PROSPECTIVE JUROR
Harriell v. State, 35 Fla. L. Weekly D450 (Fla. 4th DCA February 24, 2010):
On appeal, the defendant argued that the state improperly exercised a peremptory challenge against an African-American juror. When the prosecutor sought to remove the juror for having his eyes closed, the defendant objected generally, but did not directly refute the prosecutor’s adamant claim that the juror had been sleeping.
Because opposing counsel did not challenge the factual basis for the explanation, the Fourth District found the issue was not preserved. The court also noted that sleeping is a race-neutral reason for exercising a challenge.
DISMISSAL PROPER IN A CRUISE SHIP CASE, WHERE CRUISE SHIP TICKET PROVIDED IN ITS FORUM SELECTION CLAUSE THAT ANY SUIT AGAINST THE CRUISE LINE HAD TO BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Wiesenberg v. Costa Crociere, 35 Fla. L. Weekly D467 (Fla. 3rd DCA February 24, 2010).
WHEN CONTRACTOR HAS DUTY TO PROVIDE COVERAGE IN THE ABSENCE OF COVERAGE BY THE SUBCONTRACTOR, CONTRACTOR IS PROTECTED FROM NEGLIGENCE SUITS
Catalfumo Construction v. Varella, 35 Fla. L. Weekly D469 (Fla. 3rd DCA February 24, 2010):
A subcontractor was leaving his jobsite, and as he was going home on his bicycle out of the gate, he fell over some cement runoff and was injured. His employer denied compensability on the grounds that the accident did not happen within the course and scope of his employment. The worker then sued the general contractor for negligence.
The court found the general contractor was a statutory employer as defined in §440.11, and was obligated to provide worker’s compensation insurance when the subcontractor did not. As a consequence, the general contractor was required not only to provide the coverage for its employee, but was also protected from suits at law such as this negligence case. The court reversed the order finding no compensation immunity.
ERROR TO GRANT SUMMARY JUDGMENT ON WORK COMP. IMMUNITY WHERE DISPUTED ISSUES OF FACT ON WHETHER VICTIM WAS “EMPLOYEE” AT THE TIME OF HIS INJURY
Vasquez v. Sorrells Grove Care, 35 Fla. L. Weekly D474 (Fla. 2nd DCA February 26, 2010):
Plaintiff sustained injuries while picking oranges for a packing company. The trial court granted the packing company summary judgment on the basis of election of remedies. The court reversed.
In this related second appeal, the defendant argued it was undisputed that plaintiff was an employee of the packing company at the time of the injury, and therefore entitled to work comp. immunity. However, the court found a factual dispute to exist. While there was no dispute that the plaintiff was hired to pick oranges by an employee of the packing company, the depositions raised a question as to whether the man who hired him to pick oranges was authorized to “hire” him. Plaintiff was not registered to work in the U.S., and was paid under the table by the man who hired him. Nobody else in the company except for some of the fruit pickers knew about this arrangement. After the accident, the “employer” told the plaintiff not to tell anybody about the arrangement.
Because there were disputed facts as to whether the man was authorized by the packing company to hire the plaintiff to pick oranges, summary judgment was entered improperly.
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