City of Orlando v. Pineiro

• Citation: 66 So.3d 1064
• Decision Date: 05 August 2011
• Docket Number: No. 5D10–1388.,5D10–1388.
• Parties: CITY OF ORLANDO, Appellant,v.Carmen PINEIRO, as Personal Representative, etc., Appellee.
• Court: Court of Appeal of Florida (US)

66 So.3d 1064

CITY OF ORLANDO, Appellant,

v.Carmen PINEIRO, as Personal Representative, etc., Appellee.

No. 5D10–1388.

District Court of Appeal of Florida, Fifth District.

Aug. 5, 2011.

Walter A. Ketcham, Jr. and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Maitland, for Appellant.Christopher V. Carlyle, Shannon McLin Carlyle and Kelly L. Rooth of The Carlyle Appellate Law Firm, The Villages, for Appellee.LAMBERT, B.D., Associate Judge.

The City of Orlando (“the City”) appeals the final judgment rendered in this wrongful death action brought by Carmen Pineiro (“Pineiro”) as personal representative of the estate of her son, Edwin Alvarado.¹ The jury found the City 55% responsible for the death of Alvarado and the Fabre ² defendant, Kenyon Crowe (“Crowe”), 45% at fault, and final judgment was rendered accordingly. The City argues that a new trial should be ordered because of (1) numerous improper closing arguments of Pineiro's counsel, and (2) erroneous evidentiary rulings made by the trial court; it concludes that a new trial is warranted in any event because the verdict is contrary to the evidence and the law. For the reasons explained seriatim, we reverse and remand for a new trial.

On the evening of January 20, 2006, Edwin Alvarado, 21 years of age, had just left a barbershop when a pickup truck driven by Crowe struck his vehicle, killing him. Pineiro was appointed personal representative of her son's estate and initially brought suit against both Crowe and the owner of the vehicle. The complaint was later amended to add the City. Pineiro asserted that officers from the Orlando Police Department, immediately prior to the accident, negligently engaged in a high speed pursuit of Crowe in violation of the City's pursuit policy and that the pursuit proximately caused or contributed to the accident and Alvarado's death. Pineiro eventually resolved her claims against the other defendants and the case went to trial against the City. Because the impropriety of comments made during closing argument is dispositive of this appeal, we address those comments first. We then turn to other evidentiary rulings to provide guidance to the parties upon retrial and, finally, we address the City's argument that the verdict was against the manifest weight of the evidence.

I. CLOSING ARGUMENT

The City argues that the trial court committed reversible error in not sustaining four objections made during Pineiro's closing argument and in not granting its post-trial motion for new trial based on these errors and other improper closing arguments made by Pineiro but not objected to by the City. We review a trial court's order granting or denying a motion for a new trial based on objected—to or unobjected—to improper argument for abuse of discretion. Murphy v. Int'l Robotic Sys. Inc., 766 So.2d 1010, 1030–31 (Fla.2000); Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004). “If the issue of an opponents improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.’ ” Engle v. Liggett Group, Inc., 945 So.2d 1246, 1271 (Fla.2006) (quoting Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005)). However, for an unobjected—to improper argument to support a new trial order, the unobjected—to improper argument must be “of such a nature as to reach into the validity of the trial itself to the extent that the verdict could not have been obtained but for such comments.” Id.; see also Murphy, 766 So.2d at 1029–30. We separately address the objected-to and unobjected-to alleged improper closing arguments.

A. OBJECTED–TO CLOSING ARGUMENT.1. Inflammatory Comment.

At the conclusion of Pineiro's rebuttal closing argument, counsel stated:

The City of Orlando has to be held accountable for the death of Edwin Alvarado and you must compensate them for an amount equal to their harm. The harm that they suffered. If you fail to do so, they escape responsibility. But more importantly, if you fail to do so in this case, if you see OPD [Orlando Police Department] outside the courtroom or in the elevator or in the parking garage, guess what they are going to be doing, folks?

The City objected and a sidebar was held. The City first argued that what the Orlando Police Department would do outside the courtroom was neither relevant nor rebuttal to any comment by the City. The trial court understandably inquired as to the direction of the argument. Pineiro's counsel advised that he would be arguing to the jury that if it failed to award damages in favor of Pineiro against the City, the Orlando Police Department would be laughing. ³ The City reiterated its objection that this comment was not rebutting the City's closing, was very prejudicial and argumentative, and was not a comment on the evidence because there was no evidence as to what the Orlando Police Department would do after the case was over. The court overruled the City's objection, and Pineiro concluded his rebuttal closing argument as follows:

And if you don't hold the City of Orlando accountable or you don't compensate the mother and father of Edwin Alvarado in an amount equal to their harm that the City of Orlando caused, when you see the City of Orlando folks outside the courtroom or in the elevator or out in the parking garage, guess what they are going to be doing? They are going to be doing exactly what they were doing at the scene of the accident and at the Citrus Bowl, laughing.

On appeal, the City argues that these comments were highly inflammatory, without basis in evidence, not in response to the City's closing, and were intended to do nothing but prejudice the jury. We agree. There was no legitimate basis for this inflammatory argument; it was clearly a calculated effort by Pineiro's counsel, in his last comment to the jury in this hotly disputed trial, to elicit an emotional response from the jury, that, in order to avoid being laughed at, post-verdict, it must find the City liable.⁴

This court has long cautioned attorneys against resorting to inflammatory, prejudicial argument. Walt Disney World Co. v. Blalock, 640 So.2d 1156 (Fla. 5th DCA 1994); Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993). In Murphy, the Florida Supreme Court provided guidance and direction regarding closing argument:

The purpose of closing argument is to help the jury understand the issues in a case by “applying the evidence to the law applicable to the case.” Hill v. State, 515 So.2d 176, 178 (Fla.1987). Attorneys should be afforded great latitude in presenting closing argument, but they must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts in evidence.” Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998); see also Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993). Moreover, closing argument must not be used to “inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.” Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985).

Attorneys presenting closing argument in Florida courts, whether in criminal or civil trials, are governed by Rule 4–3.4 of the Rules Regulating The Florida Bar. Rule 4–3.4 states:

A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.

R. Regulating Fla. Bar 4–3.4(e). The underpinnings of this ethical rule are well-founded; it not only prevents lawyers from placing their own credibility at issue in a case, it also limits the possibility that the jury may decide a case based on non-record evidence. See Davis v. South Florida Water Management District, 715 So.2d 996, 999 (Fla. 4th DCA 1998); Forman v. Wallshein, 671 So.2d 872, 875 (Fla. 3d DCA 1996). In sum, Rule 4–3.4 is in place to help insure that juries render verdicts based on record evidence and applicable law, not based on impermissible matters interjected by counsel during closing argument.

Murphy, 766 So.2d at 1028.

This argument was clearly improper.

2. Value of Life/Send–a–Message Argument.

In an attempt to assist the jury in evaluating damages to award Alvarado's parents for Alvarado's death, Pineiro's counsel stated:

The question you may be asking is, how do I possibly put a value on the life of a loved one?

The City correctly objected on the ground that this is not the correct standard of damages. Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010); Wilbur v. Hightower, 778 So.2d 381, 383 (Fla. 4th DCA 2001). It is clearly error to ask a jury to place a monetary value on the life of a decedent because “ ‘the value of a human life is not an element of damages and is not the proper topic for closing argument.’ ” Wilbur, 778 So.2d at 383 (quoting Russell v. Trento, 445 So.2d 390, 392 (Fla. 3d DCA 1984)). The trial court did not specifically rule on the objection, but directed Pineiro's counsel to “stick to pain and suffering.”

Seemingly undeterred, Pineiro's counsel continued:

How do you possibly put a figure on the value of the pain and suffering for Edwin's mother and father? Unfortunately, there is no exact measurement or formula. One thing we know is that virtually every day we place some form of a value on life. Think about the times an individual is lost at sea or by boat or plane. We don't hesitate to send helicopters, the Coast Guard, hundreds of men and women and divers to search for person. When considering spending money to save a stranded person, w...