Smith v. Hooligan's Pub & Oyster Bar, Ltd., 3D98-1479.

• Decision Date: 16 February 2000
• Docket Number: No. 3D98-1479.,3D98-1479.
• Citation: 753 So.2d 596
• Parties: Susan SMITH, as Personal Representative of the Estate of David Smith, deceased; and Susan and James Smith, individually, Appellants, v. HOOLIGAN'S PUB & OYSTER BAR, LTD., and Jay Love, Appellees.
• Court: Florida District Court of Appeals

753 So.2d 596

Susan SMITH, as Personal Representative of the Estate of David Smith, deceased; and Susan and James Smith, individually, Appellants, v. HOOLIGAN'S PUB & OYSTER BAR, LTD., and Jay Love, Appellees.

No. 3D98-1479.

District Court of Appeal of Florida, Third District.

February 16, 2000.

Holland & Knight and Daniel S. Pearson, and Ilene L. Pabian, Miami, for appellants.

Marlow, Connell, Valerius, Abrams, Adler & Newman and William G. Edwards, Miami, for appellees.

Before GREEN and SORONDO, JJ., and NESBITT, Senior Judge.

ON MOTION FOR REHEARING— GRANTED

PER CURIAM.

We grant Appellees' Motion for Rehearing, withdraw our previous opinion, and substitute the following in its place.

Susan and James Smith (the Smiths), parents of the deceased David Smith (David), appeal from a final judgment entered in accordance with a jury verdict. We reverse and remand for a new trial.

Twenty-two year old David Smith was shot and killed by Josef Riano (Riano) outside Hooligan's Pub and Oyster Bar (Hooligan's), after the two had an altercation inside the bar and were thrown out. Riano pleaded no contest to the charge of second degree murder. He was sentenced to seven years in prison.

The Smiths brought a wrongful death action against Hooligan's and its owner, alleging that David's death was caused by their negligent failure to provide adequate security. Hooligan's asserted that David was comparatively negligent in causing his own death and that a third party, not Hooligan's, was liable.

Before trial, the Smiths moved in limine to exclude as irrelevant and immaterial all evidence regarding David's character. They also moved in limine to exclude the proposed opinion testimony of Hooligan's security expert regarding David's alleged propensity for violence. Both motions were denied at a pretrial hearing.

The jury found Hooligan's liable and awarded the Smiths damages in the amount of $500,000. It found that David was 60% responsible for his own death, and the award was reduced accordingly. On appeal, the Smiths raise two points: 1) that because principles of comparative fault are not applicable to negligence actions bottomed on an intentional tort, the trial court wrongly reduced the $500,000 verdict for the Smiths by the comparative negligence the jury attributed to David; and 2) that the trial court improperly admitted evidence concerning David's purported bad character because the use of bad character evidence to prove how a person acted on a particular occasion is impermissible in civil proceedings.

First, addressing the comparative fault apportionment issue, we find that this argument was not preserved for appellate review by way of a motion for directed verdict or a motion for judgment notwithstanding the verdict. The Smiths contend that they did, in fact, move for directed verdict on liability at the close of the evidence. This is true. However, the record reflects that the Smiths' attorney argued as follows:

[PLAINTIFFS' COUNSEL]: Yes. We would move for a directed verdict on liability in our case, Your Honor, basically, contending that Hooligan's, despite their duty to provide security, provided absolutely no security in the parking lot and, therefore, they breached their duty to provide security and, as a result, David Smith was killed.

THE COURT: Motion denied....

We do not agree with the Smiths' assertion that this motion for directed verdict encompassed their position that they were entitled to judgment in their favor undiminished by any comparative fault finding. On the contrary, the record reflects that the motion the Smiths made did not encompass the comparative fault issue; no argument was made that David's alleged comparative negligence was not a proper defense to Riano's intentional conduct or that comparative negligence did not apply to the facts of this case. In fact, this argument was first presented by the Smiths on appeal. Generally, one who submits his cause to the trier of fact without first moving for directed verdict at the end of all evidence has waived the right to make that motion. See Prime Motor Inns, Inc. v. Waltman, 480 So.2d 88 (Fla.1985)

. Thus, this motion for directed verdict below was insufficient to preserve the comparative fault issue for appellate review.

Turning to the Smiths' second point on appeal, the Smiths contend that the trial court in this civil action wrongly allowed Hooligan's to offer evidence regarding David's purported bad character as circumstantial evidence of his conduct on the night of his death. We agree with the Smiths for a number of reasons and believe this error requires reversal.

First, as the Smiths correctly contend, section 90.404(1), Florida Statutes (1997), provides that "[e]vidence of a person's character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion," except in three circumstances:

(a) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait

(b) Character of victim.—

1. Except as provided in s. 794.022, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution in a homicide case to rebut the trait; or

2. Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.

(c) Character of witness. Evidence of the character of witness, as provided in s. 90.608-90.610.

As stated by Professor Ehrhardt:

In civil actions, character evidence is inadmissible to prove that a person acted in conformity with his or her character, i.e., to prove the person's conduct. The probative value of such evidence is outweighed by its prejudicial effect.

CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 404.3 at 154 (1999 ed.). Furthermore, section 90.404, Florida Statutes (1997), only recognizes the exceptions delineated in subsections (1)(a) and (b) in criminal cases. The use of the words "accused" and "prosecution" in subsections (1)(a) and (b) makes it clear that section 90.404 limits the applicability of those exceptions to criminal cases.¹ Thus, because this is a civil action, the character evidence was inadmissible. See Laffman v. Sherrod, 565 So.2d 760 (Fla. 3d DCA 1990)

; Pino v. Koelber, 389 So.2d 1191 (Fla. 2d DCA 1980).

In response to the Smiths' argument regarding the character evidence, Hooligan's counters that the character evidence was fair and appropriate rebuttal to the Smiths' evidence of David's good nature, which was offered by the Smiths to prove the measure of their loss. We disagree. The record reflects that the Smiths did not submit their evidence about David's good nature until after the trial court denied the Smiths' pretrial motion in limine to exclude as irrelevant all evidence Hooligan's proposed to use regarding David's bad character; until after Hooligan's counsel had portrayed David during opening statements as a violent person who had numerous run-ins with the law; and until after the Smiths' counsel made clear that in presenting testimony concerning David's good character, he would be relying solely on the trial court's ruling permitting the admission of character evidence, and that he did not want to be accused of opening the door to the introduction of such evidence. Thus, the Smiths' counsel presented good character testimony in anticipation of Hooligan's bad character evidence and simply attempted to minimize the latter's prejudicial impact.

Next, the Smiths argue that evidence of David's involvement in other crimes and acts was inadmissible as "similar fact evidence" pursuant to section 90.402(2)(a). Hooligan's responds that the evidence concerning David's...