Rierson v. Deveau

• Citation: 273 So.3d 1041
• Decision Date: 20 March 2019
• Docket Number: No. 3D18-0246,3D18-0246
• Parties: Ashley RIERSON, Appellant, v. David DEVEAU, et al., Appellees.
• Court: Florida District Court of Appeals

273 So.3d 1041

Ashley RIERSON, Appellant,
v.
David DEVEAU, et al., Appellees.

No. 3D18-0246

District Court of Appeal of Florida, Third District.

Opinion filed March 20, 2019
Rehearing Denied April 23, 2019

Seiden Law and Henry A. Seiden (Delray Beach), for appellant.

Vernis & Bowling of The Florida Keys, P.A., and Gaelan P. Jones and Scott C. Black ; Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. and Robert I. Buchsbaum, (Hollywood), for appellees.

Before SALTER, and MILLER, JJ., and LEBAN, Senior Judge.

MILLER, J.

Ashley Rierson, appeals the final judgment rendered in this personal injury action in favor of appellees, David Deveau, Latrice Pla, Abraham Baker, and Donald Lassman, as Chapter 7 Trustee of the Bankruptcy Estate of David Deveau. Rierson raises five issues on appeal. For the reasons set forth below, we conclude that the trial court abused its discretion in denying appellant's motion for a new trial. Thus, we reverse and remand for a new trial.

273 So.3d 1043

FACTS

Appellant, Rierson, suffered catastrophic injuries after she was struck by Deveau's motor vehicle while she was traversing a three-lane roadway in Monroe County, Florida. The impact from Deveau's vehicle propelled Rierson into another lane of traffic, where she was struck again by a vehicle operated by Pla and owned by Baker.

Florida Highway Patrol Trooper Juan Sanchez responded to the scene shortly after the accident. Trooper Sanchez conducted a lengthy investigation and ultimately concluded that Deveau was at fault for failing to avoid the accident. Deveau was cited for violating section 316.130(15), Florida Statutes (2018), which provides:

Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person.

Deveau entered a plea of nolo contendere to the citation, and was thereafter adjudicated guilty.

Immediately prior to trial, Deveau sought and obtained orders in limine prohibiting any and all reference to the traffic citation and the contents of the accident report.¹ At trial, appellees contested both liability and damages. Rierson relied heavily upon the testimony of Trooper Sanchez in establishing her theory of the case. During closing argument, Deveau's counsel told the jury that Trooper Sanchez had not "rendered a single opinion about fault in [the] accident." A specific, contemporaneous objection was overruled by the trial court. Deveau's counsel then further argued that Trooper Sanchez had not reconstructed the accident and had no opinion as to whether Deveau "use[d] the lane appropriately," or as to whether or not Deveau was negligent.

Following deliberations, the jury returned a verdict of no liability as to all appellees. Rierson sought a new trial, which was denied by the trial court. This appeal ensued.

ANALYSIS

We review a trial court's denial of a motion for new trial based on improper closing arguments for an abuse of discretion.² See, e.g., Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla. 2006). Where the issue of alleged improper closing argument is properly preserved, the trial court should grant a new trial if the argument was "highly prejudicial and inflammatory."

273 So.3d 1044

See, e.g., Leyva v. Samess, 732 So.2d 1118, 1121 (Fla. 4th DCA 1999) (citation omitted). In order "[t]o determine whether the challenged statements and arguments were in fact prejudicial, the statements cannot be evaluated in isolation but must be placed and evaluated in context." Engle, 945 So.2d at 1272 (citing State v. Jones, 867 So.2d 398, 400 (Fla. 2004) ).

Here, Rierson contends the closing argument improperly suggested that Trooper Sanchez did not issue a citation to Deveau for the accident. "It is well settled that questions or allusions which suggest that a driver has or has not been charged with a traffic violation in connection with an accident constitute prejudicial error, which in appropriate circumstances will warrant a new trial." Moore v. Taylor Concrete & Supply Co., 553 So.2d 787, 789 (Fla. 1st DCA 1989) ; see also Eggers v. Phillips Hardware Co., 88 So.2d 507 (Fla. 1956) ; Budget Rent A Car Sys., Inc. v. Jana, 600 So.2d 466, 467 (Fla. 4th DCA 1992) (holding that police officer's testimony that a citation had been issued to other driver was improper and should have resulted in mistrial); Spanagel v. Love, 585 So.2d 317, 318 (Fla. 5th DCA 1991) (holding that statement by police officer that there was no improper driving on the part of defendant motorist required a new trial, as statement was tantamount to a declaration by officer that no traffic summons had been issued in the case); Estate of Wallace v. Fisher, 567 So.2d 505, 508 (Fla. 5th DCA 1990) (holding that admission of officer's testimony regarding issuance of traffic citation was prejudicial and reversible). In Albertson v. Stark, 294 So.2d 698,...