Russell, Inc. v. Trento, 82-1445
| Decision Date | 14 February 1984 |
| Docket Number | No. 82-1445,82-1445 |
| Citation | 445 So.2d 390 |
| Parties | RUSSELL, INC., Appellant, v. Norma TRENTO, as Personal Representative of the Estate of Anthony Trento, deceased, for the use and benefit of Norma Trento, as surviving mother of the deceased, Appellee. |
| Court | Florida District Court of Appeals |
Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett and Michael J. Murphy and Kathleen Williams, Miami, for appellant.
Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellee.
Before HENDRY, HUBBART and NESBITT, JJ.
Substituted Opinion
Russell, Inc. contests the final judgment which awarded the surviving mother, Mrs. Trento, $1,125,000. and the estate of Anthony Trento, $2,435.35.
Anthony Trento was a 13 year old boy who was electrocuted while climbing a large ficus tree whose overgrowth hid the powerlines. The tree was located on a municipal right of way and maintained by Florida Power and Light Company (F.P.L.). Mrs. Trento brought a wrongful death action against the City of Miami, Metropolitan Dade County and F.P.L., and subsequently amended the complaint to include a claim against Farrens and Russell, Inc., the tree-trimming firms under contract by F.P.L. F.P.L. and Metropolitan Dade County settled with Mrs. Trento for the respective sums of $478,000. and $3,000. Farrens was voluntarily dismissed and the City of Miami obtained a final summary judgment. The matter proceeded to trial against Russell, Inc. and the jury returned a verdict finding Russell, Inc. 100 percent liable and awarded damages. The court ordered Russell, Inc. to pay the difference between the jury award and the settlements.
Russell, Inc. urges error in the lower court's refusal to grant its motion for a mistrial based upon the improper final argument of Trento's counsel. It contends that 1) the conduct of Mrs. Trento's counsel and of Mrs. Trento herself was inappropriate and prejudicial and 2) the argument of counsel was improper in that it placed a value on human life. We agree with appellant's contentions and reverse for a new trial.
Final argument of Mrs. Trento's counsel contained fallacious statements that he had "lived with the case and represented" the plaintiff and her family for the past three years and that he had "carried the burden" of this case "for three years in representing the family." 1 The conduct of counsel continued to be inappropriate with counsel's emotional breakdown before the jury. It is apparent from the record that the emotion and anguish exhibited by counsel was not spontaneous and unthinking, but was a shrewdly calculated attempt to solicit a sympathetic response from the jury.
A further example of such planned dramatic conduct is seen in the actions of Mrs. Trento at the end of her testimony wherein she made an unsolicited emotional plea to the jury and gave a description of holding her son until his death. 2 This plea was unresponsive to any questions posed by counsel and false in that Mrs. Trento did not see, much less hold, her son after the accident in question.
These sympathetic ploys used by counsel will not be condoned. The purpose of closing argument is for counsel to discuss with the jury their versions of the evidence and the reasonable inferences therefrom, in light of the issues framed by the pleadings. Remarks made solely for the purpose of evoking sympathy for the plaintiff and of such a character that neither rebuke nor retraction will destroy their prejudicial, sinister influence warrant a new trial. Eastern Steamship Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA), cert. denied, 388 So.2d 1115 (Fla.1980); LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA), cert. denied, 359 So.2d 1216 (Fla.1978); Tampa Transit Lines, Inc. v. Corbin, 62 So.2d 10 (Fla.1952). Because we find that the remarks made in the present case fall within this...
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City of Orlando v. Pineiro
...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 suf......
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Kelley v. Mutnich, 84-1648
...sinister influence...." which is the test most commonly employed in evaluating the necessity for a new trial. Russell, Inc. v. Trento, 445 So.2d 390, 392 (Fla. 3d DCA 1984). Thus, it is not every inappropriate remark that justifies a mistrial or a new trial, even though the trial court has ......
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Knoizen v. Bruegger
...1047 (Fla. 4th DCA 1978) (holding the plaintiff's argument was, in effect, argument for punitive damages). Accord Russell, Inc. v. Trento, 445 So.2d 390 (Fla. 3d DCA 1984). We disagree. To warrant reversal on the ground that a closing argument was an improper appeal to the jury's emotions, ......
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R.J. Reynolds Tobacco Co. v. Calloway
...jury for a favorable verdict and asking a jury to consider the economic status of either party ....”); see also Russell, Inc. v. Trento, 445 So.2d 390, 392 (Fla. 3d DCA 1984) (“Remarks made solely for the purpose of evoking sympathy for the plaintiff and of such a character that neither reb......
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Avoiding pitfalls in closing arguments.
...is improper, evoking sympathy for plaintiff's counsel is obviously worse. An extreme example of this occurred in Russell, Inc. v. Trento, 445 So. 2d 390 (Fla. 3d DCA 1984). There, the plaintiff's verdict was reversed because his counsel argued that he had "lived with ... and carried the bur......