Brancaccio v. Jackal Corp., 93-820.

• Decision Date: 31 August 1994
• Docket Number: No. 93-820.,93-820.
• Citation: 641 So.2d 114
• Parties: Carmine BRANCACCIO and Helen Brancaccio, his wife, Appellants, v. JACKAL CORPORATION, d/b/a Danny's Restaurant, Appellee.
• Court: Florida District Court of Appeals

641 So.2d 114

Carmine BRANCACCIO and Helen Brancaccio, his wife, Appellants, v. JACKAL CORPORATION, d/b/a Danny's Restaurant, Appellee.

No. 93-820.

District Court of Appeal of Florida, Third District.

May 3, 1994.

Rehearing Denied August 31, 1994.

Ronald L. Giroux, Miami, for appellants.

James C. Kelley, Miami, for appellee.

Before JORGENSON, GERSTEN and GODERICH, JJ.

PER CURIAM.

The appellants have failed to provide a transcript of the proceedings below or a proper substitute and, therefore, the trial court's ruling must be presumed correct. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1980); In re Guardianship of Read, 555 So.2d 869 (Fla. 2d DCA 1989); Ahmed v. Travelers Indem. Co., 516 So.2d 40 (Fla. 3d DCA 1987). Unlike the court in Gold, Vann & White, P.A. v. DeBerry, 1994 WL 150171 (Fla. 4th DCA 1993), we are unable to adequately review the entire trial court record to determine whether the contents of the notes and drawings were important enough to the issues of the case to require a new trial. See Gills v. Angelis, 312 So.2d 536 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 17 (Fla. 1976); Schoeppl v. Okolowitz, 133 So.2d 124 (Fla. 3d DCA 1961). Accordingly, the trial court's order denying the plaintiffs' request for a new trial is affirmed.

GODERICH, J., concurs.

GERSTEN, Judge, concurring.

I concur with my colleague. I only write to add an alternative ground for affirmance. Even if it is error to provide the jury with items not admitted into evidence, the exhibit must be prejudicial to warrant reversal. Bottoson v. State, 443 So.2d 962, 966 (Fla. 1983), cert. denied, 469 U.S. 873, 105 S.Ct. 223, 83 L.Ed.2d 153 (1984). "There is no prejudice where the information conveyed by the unadmitted materials merely duplicates evidence that had been properly presented to the jury at the trial." Id. at 966.

Here, although the jury had an unadmitted exhibit in the jury room, its presence only duplicated testimony of a witness. Thus, the jury merely saw in the jury room what was properly presented to it at trial. Therefore, the trial court did not abuse its discretion in denying the motion for a new trial and I would consequently affirm.

JORGENSON, Judge, dissenting.

I respectfully dissent. In my view, the trial court's order denying plaintiff's motion for a new trial must be reversed due to the undisputed fact that nonevidentiary materials were given to the jury during deliberations. Moreover, there is a sufficient record from which it can be determined that the error was prejudicial and that a new trial is required.

Brancaccio sued Jackal Corporation's restaurant for injuries sustained when he slipped and fell while departing the restaurant. Plaintiff contended that he slipped on a wet rubber mat on the inclined surface of the restaurant's exit/entrance way. Defendant contended that plaintiff did not slip until he reached the sidewalk, beyond defendant's premises. The exact location of Brancaccio's slip was thus the critical issue for the jury to decide.

The majority opinion seizes upon the fact that we have not been provided with a transcript of entire proceedings below. While this is true, we do have the benefit of a partial transcript of the trial and the entire transcript of the hearing on plaintiff's motion for a new trial. During trial Dr. Harrenstein, defendant's expert liability witness, testified that defendant was not liable for the accident in question. Dr. Harrenstein had made a detailed chart of the accident scene on large (27" X 32") sheets of paper and used this chart during his testimony. The sheets of paper that make up this chart are included in the record before this court. During the course of his testimony, Dr. Harrenstein added a "stick" figure, which was supposed to depict the plaintiff's body position at the time of the accident, to the chart. Dr. Harrenstein positioned the figure that represented plaintiff's body so that it was on the sidewalk, and not on the mat as plaintiff had testified. The chart was not introduced into evidence.

The partial transcript of the trial proceedings discloses that, after the jury had deliberated for several hours, it sent a note to the court which read: "Can we see the notes on the board." The trial judge presumed that the jury was referring to Dr. Harrenstein's chart. Counsel for plaintiff strenuously objected to the chart being allowed into the jury room as it was not in evidence. The trial court overruled the objection and directed the bailiff to take the chart to the jury room. The jury deliberated for several more hours and finally returned with a verdict in favor of defendant. Plaintiff moved for a new trial and specifically cited the admission of the chart into the jury room as grounds for its motion, which the trial court denied.

The trial court committed reversible error in admitting prejudicial, nonevidentiary material into the jury room. This error can only be remedied by granting a new trial. "The jury is not permitted to take with them into the jury room for use in their deliberations any exhibit which is not introduced into evidence." Spencer A. Gard, Florida Evidence § 13:15, at 42 (2d ed. 1980); Bottoson v. State, 443 So.2d 962, 966 (Fla. 1983), cert. denied, 469 U.S. 873, 105 S.Ct. 223, 83 L.Ed.2d 153 (1984). The prohibition against allowing unadmitted papers and articles into the jury room stems from a duty to guard against an "impermissible intrusion of the jury's deliberative process." State ex rel. Pryor v. Smith, 239 So.2d 85, 86 (Fla. 1st DCA 1970) (citing State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla. 1951)). Florida courts take this duty very seriously. See, e.g., Yanes v. State, 418 So.2d 1247, 1248 (Fla. 4th DCA 1982) ("We feel that the jury process must be firmly governed to the end that the...