Sosa v. Knight-Ridder Newspapers, Inc.

• Decision Date: 21 July 1983
• Docket Number: No. 61727,KNIGHT-RIDDER,61727
• Parties: Blanca Nieve SOSA, Petitioner, v.NEWSPAPERS, INC., Respondent.
• Court: Florida Supreme Court

Page 821

435 So.2d 821

Blanca Nieve SOSA, Petitioner, v. KNIGHT-RIDDER NEWSPAPERS, INC., Respondent.

No. 61727.

Supreme Court of Florida.

July 21, 1983.

Arnold R. Ginsberg of Horton, Perse and Ginsberg, and Rosen & Rosen, P.A., Miami, for petitioner.

Robert C. Ward and Steven Hunter of Adams, Ward, Hunter, Angones & Adams, Miami, for respondent.

OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal reported as Knight-Ridder Newspapers, Inc. v. Sosa, 407 So.2d 916 (Fla. 3d DCA 1982), which reversed the trial court's order granting petitioner a new trial. We find conflict with Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975); and Cloud v. Fallis, 110 So.2d 669 (Fla.1959). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The question in this cause concerns the district court's holding that the trial court abused its discretion in granting a new trial. The trial court had concluded in its order that respondent's counsel had improperly influenced the jury by commenting in final argument on matters not introduced into evidence and, further, that it had not properly instructed the jury concerning the employment status of the decedent. We quash the decision of the district court because we find that the trial court did not abuse its discretion in granting a new trial. We agree with the trial court's conclusion that there was improper comment in final argument upon matters not of record. We also find that the decedent's employment status was not only improperly presented to the jury, as held by the trial court, but that under the facts of this case the decedent's employment status was a question of law which should have been determined by the court and not by the jury.

This case involves a wrongful death action arising from an accident which caused the death of petitioner's fourteen-year-old son, Jose Lanza. The facts concerning the accident are undisputed. Jose was a news-carrier for the Miami News, and he and his mother had executed a news-carrier contract with The Miami News which stated that Jose was an employee of the paper under the terms of the contract. Jose and Albert Ruiz, who was also a news-carrier, were picked up in their neighborhood and taken by a newspaper distribution manager to another area of Miami to solicit new subscriptions as part of a subscription contest sponsored by the paper. The contest was voluntary and the news-carriers did not have to participate as a requirement of their employment. If they did participate, however, the news-carriers could win prizes. The neighborhood to be canvassed was assigned to the boys by the distribution manager.

After dropping the boys off to begin canvassing the neighborhood, the distribution manager saw Jose and Albert "fooling around" and he decided to split them up. He put Albert in his car and told Jose to continue on his own. When the distribution manager began to drive off with Albert in his car, Jose complained that he did not want to be left alone in the strange neighborhood and asked to be let in the car. The distribution manager, however, kept the car moving and Jose, who was running next to the car, fell and was run over. Jose's skull was fractured in the accident and he died a few days later.

Petitioner, as the personal representative of her son's estate, filed a wrongful death action against Knight-Ridder Newspapers, Inc., the publishers of The Miami News. The theory of petitioner's case at trial was that even if Jose was an employee under his contract as a news-carrier for the respondent, he was not acting within the course and scope of his employment when he participated in the newspaper solicitation drive. The respondent newspaper denied liability and affirmatively pleaded that Jose was an employee at the time of the accident and that under chapter 440, Florida Statutes (1975), respondent's payment of workers' compensation benefits precluded petitioner from bringing a wrongful death action. Prior to trial petitioner filed a motion in limine to exclude from the jury any reference to workers' compensation payments; the motion was denied. The issue was raised again during the course of the trial. Counsel for the petitioner agreed that Jose's medical bills had been paid by the workers' compensation carrier and that they were not a proper element of damages in this wrongful death action. He agreed to withdraw the bills, which apparently had been marked for identification in evidence. Although counsel for the petitioner stated that he had "no objection to the fact that the defendant, through Travelers, paid these [medical] bills," he did "object to the fact that it was paid for [by] a workmen's compensation carrier." Petitioner's counsel also asked that before evidence of the payment of workers' compensation benefits was presented to the jury that he have an opportunity to properly object to the introduction of that evidence. No evidence of these medical expenses or the fact that they were paid by a workers' compensation insurance carrier was presented to the jury. The first mention of workers' compensation benefits to the jury came during final argument by counsel for the respondent. The respondent did introduce the news-carrier contract that stated Jose was an employee.

During final argument counsel for the respondent stated, "There were no money damages because they were all paid by workmen's compensation, which is another issue that I want to talk about." When counsel for the petitioner objected to this mention of workers' compensation, counsel for the respondent stated, "There was a stipulation that there was payment by workmen's compensation." Counsel for petitioner did not agree and stated, "There was a stipulation of payment, period. And I withdrew the medical bills." The objection was overruled and counsel for respondent continued as follows:

Workmen's compensation paid the bills and there were benefits received.

Now, if you are thinking in your minds that I am not going to go back and touch on damages, other than what I am going to talk to you about now, this is a very sympathetic case. But I think the damages are much less than $200,000.

It is not my job to tell you what it is. It is your job. I am not doing my job as a lawyer by telling you there were benefits received and workmen's compensation. They paid the bills and there were benefits.

Now, the reason that came into the case is because, and that is the same reason--the reason that that testimony was received was because if you are injured on the job and you are an employee, then you get a certain statutory workmen's compensation award. You cannot file a lawsuit against your employer.

The defense was that the boy was covered by workmen's compensation. And his parents have already got his compensation. They are not allowed to go to court to bring it.

Now, to be quite honest with you, in a case like this with a sympathetic character, right down the line, I think this boy was clearly an employee. His employment agreement is in the record and it even says it specifically.

After all the evidence was presented in the case, the petitioner moved for a directed verdict on the issue of Jose's status but the trial court reserved ruling and never directly ruled on the motion.

The case was submitted to a jury by special interrogatories on the issue of the decedent's employment status at the time of the accident. The applicable interrogatories and the answers given by the jury were as follows:

1. Whether the decedent, JOSE LANZA, was an employee of KNIGHT-RIDDER NEWSPAPERS, INC., a Florida corporation, d/b/a THE MIAMI HERALD PUBLISHING CO. and THE MIAMI NEWS, or whether the decedent, JOSE LANZA, was an independent contractor?

We, the jury, find the decedent, JOSE LANZA was an employee of KNIGHT-RIDDER NEWSPAPERS, INC., etc.

Yes

We, the jury, find the decedent, JOSE LANZA was an independent contractor.

(Please check one and one only).

If the answer to question number 1 above is "independent contractor," do not answer question number 2 but proceed on to question number 3.

If the answer to question number 1 is "employee," answer question number 2.

2. Whether the decedent, JOSE LANZA, at the time of his death, was engaged in activities within the course and scope of his employment with KNIGHT-RIDDER NEWSPAPERS, INC., a Florida corporation, d/b/a THE MIAMI HERALD PUBLISHING CO. and THE MIAMI NEWS?

YES Yes NO

In view of the jury's answers to the interrogatories, the trial court entered judgment for respondent.

The petitioner filed a motion for a new trial, contending that the verdict was contrary to the weight of the evidence and the law, that the trial court erred in failing to grant petitioner's motion in limine to prohibit reference to workers' compensation at trial, that the trial court erred in allowing respondent's counsel to refer to workers' compensation payments during final argument, and that the trial court erred in not granting petitioner's motion for a directed verdict because the evidence conclusively showed that Jose was not, as a matter of law, acting as an employee of the respondent at the time of the accident. The trial court granted the motion for new trial and in its order stated:

5. During the course of the litigation this Court ruled there existed questions of fact as to the decedent's status at the time of his death and concluded that the jury should determine the ultimate issue. In making this ruling that the jury should determine the ultimate issue, this Court believes it was the Court's responsibility to interpret the contract between the minor plaintiff and his employer. This, the Court did not do. There was no issue in this case concerning the fact that the minor plaintiff was an employee for The Miami Herald when the minor plaintiff was delivering newspapers. At the time of the incident sued upon, the minor plaintif...