Norman v. Gloria Farms, Inc.
| Citation | 668 So.2d 1016 |
| Decision Date | 07 February 1996 |
| Docket Number | No. 93-2181,93-2181 |
| Parties | 21 Fla. L. Weekly D339, 21 Fla. L. Weekly D385 James A. NORMAN, Jr. and Tyleia Norman, Appellants, v. GLORIA FARMS, INC., Appellee. |
| Court | Court of Appeal of Florida (US) |
Appeal from the Circuit Court for Okeechobee County; William L. Hendry, Judge.
Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Orrin Beilly of The Law Offices of Orrin R. Beilly, West Palm Beach, for appellants.
Stephen G. Hayskar and Garrison M. Dundas of Brennan, Hayskar, Jefferson, Gorman, Walker & Schwerer, P.A., Fort Pierce, for appellee.
Plaintiffs, James and Tyleia Norman, appeal an adverse jury verdict in a personal injury lawsuit. We reverse because the combination of improper contact between the jury's foreman and his brother, an employee of defendant's liability carrier, and repeated improper remarks in closing argument lead us to conclude that plaintiffs did not receive a fair trial from an impartial jury.
Plaintiff, James Norman, received injuries while hog hunting on the premises of defendant, Gloria Farms, located in Okeechobee County, Florida. Plaintiff Norman, along with a group of five others, had been invited to go hunting for wild hogs by a ranch hand who had received permission from his father, the farm's foreman. Plaintiffs filed suit for damages, alleging that the accident was caused by the presence of a culvert covered with vegetation on the side of a road where plaintiff Norman had been riding in the morning hours of January 7, 1990. Liability was contested. A central issue regarding defendant's liability was whether it negligently maintained its premises in a dangerous condition and negligently failed to warn of the dangerous condition created by the camouflaged culvert. Following trial, the jury rendered a verdict in favor of defendant.
After the adverse jury verdict, plaintiffs learned that the foreman of the jury was the younger brother of an agent of Florida Farm Bureau, defendant's liability insurer. 1 The brother, in fact, had participated in the liability investigation of plaintiff Norman's accident. Defendant does not dispute this fact. The trial court granted a jury interview based on verified allegations of improprieties.
Instead of a jury interview before the court, the court authorized the taking of the deposition of the juror where both sides, but not the court, were present. The juror testified that while he knew his brother worked for the insurance company, he did not know that his brother's company insured defendant or that his brother had taken part in the investigation of the accident.
Plaintiffs further learned in post-trial deposition that the juror had two conversations with his brother during this three-day trial regarding the case. Although the juror testified in deposition that no substantive matters concerning the case were discussed during either conversation with his brother, he did admit that he told his brother, in response to his brother's inquiry as to how the case was going, that "Mr. Hayskar [defense counsel] was eating [plaintiffs' trial counsel's] lunch." 2
At the outset of trial, the judge expressly and repeatedly instructed the jury that they were prohibited from discussing the case with third parties in order to prevent outside influence, and further instructed them not to prematurely form an opinion as to the merits of the case or receive any evidence outside of the courtroom. Despite the judge's explicit instruction, the offending juror admittedly engaged in two separate conversations with his brother regarding the case during the three-day trial. His brother was not just a relative, but an employee of the defendant's liability carrier who participated in the investigation of this particular accident.
The very fact that questions were asked of a juror by a representative of defendant's liability carrier during the pendency of the trial and the fact that the juror discussed the case in any manner with an outside party is troubling. It is axiomatic that one side ought not to have an unfair advantage by learning from a juror prior to the jury verdict how the case was going. Such information has the potential of influencing any settlement discussions during trial and trial strategy.
The fact that a juror is approached by a party, his agent or attorneys, or even the trial judge is considered an objective act extrinsic to the verdict which potentially compromises the integrity of the fact-finding process. See Maler v. Baptist Hosp. of Miami, Inc., 559 So.2d 1157 (Fla. 3d DCA 1990), order approved, 579 So.2d 97 (Fla.1991); Fitzell v. Rama Indus., 416 So.2d 1246, 1247 (Fla. 4th DCA 1982). As stated by the third district in Maler:
In order to constitute juror misconduct and, therefore, a matter extrinsic to the verdict sufficient to set aside the verdict or for a post-trial jury inquiry, Florida and other courts have consistently held that some objective act must have been committed by or in the presence of the jury or a juror which compromised the integrity of the fact-finding process, as where ... a juror was approached by a party, his agent or attorneys....
We find that the agent's improper contact with a juror and their subsequent conversation regarding the juror's perceptions of the case constitute objective acts within the contemplation of Maler that compromise the integrity of the fact-finding process. The question of "how the case was going" was initiated by a representative of defendant. This represents an instance of improper contact which will not be tolerated as a matter of public policy. Additionally, the response made by the juror was in contravention of an express instruction by the trial court not to discuss the case with anyone. That his response plainly indicated the juror's perceptions regarding the merits of the case further exacerbated the negative impact of the juror's misconduct.
In Amazon v. State, 487 So.2d 8, 11 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986), the supreme We believe the record demonstrates that a potentially prejudicial communication occurred and defendant did not dispel the presumption of prejudice. The communication in this case at the very least supplied an employee of defendant's liability carrier with information that could improperly give defendant an unfair advantage. This cannot be countenanced as a matter of policy.
court enunciated the general rule that "potentially harmful misconduct is presumptively prejudicial." Contact with a juror during trial about the pending matter falls within this category. Id. Once that threshold has been met, the burden then shifts to the party seeking to preserve the jury's verdict to demonstrate that the contact was harmless. Id. In Maler, 579 So.2d at 100 n. 1, and State v. Hamilton, 574 So.2d 124, 129 (Fla.1991), the supreme court made this standard even more explicit. Once improper contact or juror misconduct is established by juror interview, the moving party is entitled to a new trial unless the opposing party can demonstrate that there is no reasonable possibility that the juror misconduct affected the verdict. See also Amazon, 487 So.2d at 11
Albeit in a different context, that of an ex parte communication between a trial judge and a deliberating jury, specific prejudice will also be presumed even if the communication is innocent and purportedly unrelated to the issues in the case. See, e.g., Hernandez v. Charles E. Virgin, M.D., P.A., 505 So.2d 1369 (Fla. 3d DCA 1987). In those cases it has been held that:
[R]eversal is required where ... owing to the nature of the ex parte communication, the reviewing court is unable to determine whether the action was actually harmless.
Hatin v. Mitjans, 578 So.2d 289, 290 (Fla. 3d DCA), review denied, 591 So.2d 181 (Fla.1991). 3
A new trial based on complained-of conduct or improper contact may be required under "some circumstances as a matter of public policy for the purpose of maintaining confidence in the integrity of jury trials." Policari v. Cerbasi, 625 So.2d 998, 998 (Fla. 5th DCA 1993) (citing Snelling v. Florida E. Coast Ry., 236 So.2d 465, 466 (Fla. 1st DCA 1970)). While a party is not necessarily entitled to a perfect trial, a party is entitled to a fair one. Id. The combination of the juror's relationship to and conversations with his brother together with improper and inflammatory remarks made by defense counsel during closing argument substantially undermined plaintiffs' right to a fair trial, compromised the integrity of this jury trial, and thwarted substantial justice. Doyle v. State, 460 So.2d 353, 356-57 (Fla.1984); Policari; see generally Ford v. Robinson, 403 So.2d 1379 (Fla. 4th DCA 1981). We therefore address the improper comments of defense counsel in closing argument.
Okeechobee is a rural community with many ranches and farms. Hunting (including wild hog hunting) is a popular sport as evidenced by the fact that among the six jurors and one alternate seated, only two had never hunted. Among the other five, four hunted, including hunting for hogs, and the fifth juror's husband hunted often.
During closing, defense counsel made the following arguments, all of which we find to be an improper appeal to the A verdict in this case for the Normans, a verdict in this case against Gloria Farms is going to bring an immediate halt to hog hunting in Okeechobee.
passions and prejudices of this jury on the critical issues of liability and financial responsibility. Near the beginning of his closing argument, defense counsel stated:
Can you imagine any rancher, anybody that owns property in this town or community ever allowing anybody to come out and hog hunt again? Not if the news of this were...
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...error standard than criminal cases in which due process and liberty interests are most prominent. See Norman v. Gloria Farms, Inc., 668 So. 2d 1016, 1027 n.1 (Fla. 4th DCA 1996) ("In other words, the threshold for finding fundamental error must actually be lower in criminal cases to insure ......
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