Burger King Corp. v. Lastre-Torres

• Decision Date: 07 September 2016
• Docket Number: Nos. 3D15–1007,3D15–1523,3D15–2104.,s. 3D15–1007
• Citation: 202 So.3d 872
• Parties: BURGER KING CORPORATION, Appellant, v. Angel Luis LASTRE–TORRES, Appellee.
• Court: Florida District Court of Appeals

202 So.3d 872

BURGER KING CORPORATION, Appellant,
v.
Angel Luis LASTRE–TORRES, Appellee.

Nos. 3D15–1007
3D15–1523
3D15–2104.

District Court of Appeal of Florida, Third District.

Sept. 7, 2016.
Rehearing Denied Oct. 4, 2016.

Rumberger, Kirk & Caldwell, P.A., Candy L. Messersmith, David B. Shelton and Robert V. Fitzsimmons, Orlando, for appellant.

Keith Chasin, for appellee.

Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

FERNANDEZ, J.

Burger King Corporation appeals a final judgment entered in favor of Angel Luis Lastre–Torres. We affirm the final judgment except for the award of past and future medical expenses as those were excessive and not supported by the undisputed evidence. See Aircraft Serv. Int'l, Inc. v. Jackson, 768 So.2d 1094, 1096 (Fla. 3d DCA 1995) (stating that “[a]wards exceeding [a] definite and ascertainable amount are readily vacated and remanded”). Accordingly, upon remand the trial court is instructed to reduce the past medical expenses to $4,026.35 and the future medical expenses $24,024. In all other regards, we affirm.

Affirmed in part, reversed in part and remanded.

ROTHENBERG, J. (concurring).

Although I agree that the judgment entered in favor of the plaintiff, Angel Luis Lastre–Torres (“the plaintiff”), should be affirmed but reduced based on our reversal of the amount awarded for past and future medical expenses, I write separately to address and record the exceptionally improper closing arguments made by the plaintiff's trial counsel. As will be demonstrated below, counsel's closing arguments were racially and ethnically charged and were made in an effort to invoke sympathy for the plaintiff and anger towards the seemingly uncaring corporate defendant, Burger King. The only reason this case has not been reversed and remanded for a new trial is because these improper arguments sailed by without objection by opposing counsel or intervention by the trial court.

Summary of the Case

The plaintiff, who was employed by a cleaning service that had a contract with Burger King to clean equipment at Burger King's restaurants, was injured when a degreaser he was using to clean the hood of a fryer dripped into his eye. The plaintiff claimed that, although he had asked for a face mask several times prior to his injury, no mask had been provided. Although several witnesses who testified on behalf of Burger King disputed the plaintiff's claim, testifying that weekly inspections were made and that all of the safety equipment, including the subject mask was present at that location, the jury concluded otherwise, and we are not free to substitute our opinion on such factual matters for that of the trier of fact. Teichner & Mella, P.A. v. Butler By and Through Fulton, 600 So.2d 507, 508 (Fla. 3d DCA 1992).

The jury ultimately returned a verdict in favor of the plaintiff and awarded him $931,000 in damages. A breakdown of the damages is as follows: $29,000 for past medical expenses; $52,000 for future medical expenses; $50,000 for past pain and

202 So.3d 874

suffering; and $800,000 for future pain and suffering. Because the jury apportioned 90% of the liability to Burger King, the final judgment entered against Burger King was in the amount of $837,900. Burger King timely moved for remittitur and for a new trial, both of which were denied by the trial court and are before this Court on appeal. Attorney's fees and costs in the amounts of $92,185 and $6,962.40, respectively, were also awarded based on the plaintiff's offer of judgment.

The majority reverses the trial court's order denying Burger King's motion for remittitur of the past medical expenses as the undisputed evidence reflects that these expenses totaled $4,026.35, and thus the jury's award of $29,000 for past medical expenses was unsupported by the evidence and was clearly excessive. We, therefore, reverse that portion of the trial court's order denying Burger King's motion for a remittitur for the past medical expenses, and order a reduction to $4,026.35 in accordance with the evidence introduced at trial. Similarly, the trial court erred by also denying Burger King's motion for remittitur as to the plaintiff's future medical expenses as the evidence regarding those expenses does not support the jury's $52,000 award. The plaintiff's expert testified that the plaintiff's future medical expenses attributed to the sued-for injury equaled $24,024.¹ Therefore, the future medical expenses must be reduced to $24,024. I concur with both of these findings, and with the conclusion affirming the remainder of the damages.

The Plaintiff's Closing Arguments

The plaintiff, who was born in Cuba, and only speaks Spanish, testified at trial through an interpreter. The jury was primarily comprised of Hispanics. The plaintiff's theme throughout his closing arguments focused on the difficulty that first-generation Americans allegedly face upon entering the work force in America. Plaintiff's counsel, Mr. Chasin, argued that first-generation Americans are forced to endure tough physical labor under the harshest of conditions, and because of these conditions, they are people of great integrity and honesty and, therefore, they should be believed and, of course, the jury should feel sympathy for first-generation Americans.

MR. CHASIN: What justice will

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