Court: District Court of Appeal of Florida; September 8, 1993; Florida; State Appellate Court
David and Ann Griefer, as guardians of their daughter Laurel B. Griefer, appealed a final judgment in a negligence case against Michael Jon DiPietro and Myra DiPietro. The trial court awarded Laurel $2,075,000 in damages, reduced to $622,500 due to the jury's finding that she was 70% negligent for holding her wedding gown bag in a way that obstructed her view while crossing the street. The appellees were found 30% negligent, primarily for not having their lights on at night.
The appellants contested the trial court's decisions, arguing errors in the jury selection process, improper argument presentation, denial of a jury instruction on unlawful speed, and the refusal to grant an additur. The court found merit in the claim regarding the jury instruction on unlawful speed, citing Florida Statutes section 316.183, which mandates that drivers must control their speed to avoid collisions. The trial court's refusal to provide this instruction was deemed erroneous, leading to a reversal of the judgment and a mandate for a new trial. The appellants' challenge regarding juror selection was not preserved for review, as they failed to timely identify an objectionable juror after exhausting their peremptory challenges.
The applicable speed limit in the case was 30 miles per hour. An expert for the appellants testified that the appellee's speed ranged from 28 to 43 miles per hour, but on cross-examination, the expert acknowledged the possibility of the appellee traveling at 25 miles per hour, which aligned with the testimony of the appellee's expert. The trial court found no evidence of the appellee exceeding the speed limit, leading to a directed verdict concerning unlawful speed. However, evidence suggested that the appellee should have been driving slower due to circumstances such as driving past sunset without lights. The court ruled that the appellants were entitled to jury instructions reflecting the evidence and their case theory, and it was a reversible error to deny the instruction on unlawful speed. A careless driving instruction did not adequately convey the necessity for speed to be reasonable and prudent under the circumstances. Given that the appellee was apportioned only 30% negligence, this error was not harmless, necessitating a new trial on all issues related to negligence and damages. The court did not address the appellants' claims regarding the damage award, as those issues were not preserved for review. The decision was reversed and remanded for a new trial. Following a motion for rehearing, the court denied the request concerning the jury instruction but modified its remand to only require a new trial on liability, concluding that the damage determination was unaffected by the jury instruction error.
The case centers on the comparative negligence issue regarding whether the deceased passenger was wearing a helmet during a motorcycle accident. The trial court deemed certain graphic evidence of the deceased's condition at the accident scene improper, finding it cumulative and potentially prejudicial to the jury, impacting both liability and damage awards. However, the current case revealed that the identified error did not influence the jury's damage calculations or inflame their sentiments. Following precedents, including Florida East Coast Railway Co. v. Griffin and others, it was determined that a new trial on damages is not warranted when errors pertain solely to liability issues. The appellant's request for an additur due to an allegedly insufficient verdict was scrutinized, and the trial court's denial of this motion, grounded in the record, was upheld. The court referenced Florida Statutes section 768.043, affirming that a trial judge does not act as an additional juror with veto power. Consequently, the court affirmed the damage awards. Judges ANSTEAD and OWEN concurred with the decision.
