Tuttle v. Miami Dolphins, Ltd.

• Decision Date: 26 April 1988
• Docket Number: No. 86-1212,86-1212
• Citation: 13 Fla. L. Weekly 1018,551 So.2d 477
• Parties: 13 Fla. L. Weekly 1018, 14 Fla. L. Weekly 1648, 14 Fla. L. Weekly 210 Guy TUTTLE and Janet Tuttle, his mother, Appellants/Cross-appellees, v. MIAMI DOLPHINS, LTD., a Florida limited partnership, Joseph Robbie and South Florida Sports Corporation, as General Partners of Miami Dolphins, Ltd., and Harry M. Stevens, Inc., a New York corporation authorized to do business in Florida, Appellees/Cross-appellants, and The City of Miami, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 477

551 So.2d 477

13 Fla. L. Weekly 1018, 14 Fla. L. Weekly 1648,

14 Fla. L. Weekly 210

Guy TUTTLE and Janet Tuttle, his mother, Appellants/Cross-appellees, v. MIAMI DOLPHINS, LTD., a Florida limited partnership, Joseph Robbie and South Florida Sports Corporation, as General Partners of Miami Dolphins, Ltd., and Harry M. Stevens, Inc., a New York corporation authorized to do business in Florida, Appellees/Cross-appellants and The City of Miami, a municipal corporation, Appellee.

No. 86-1212.

District Court of Appeal of Florida,

Third District.

April 26, 1988.

On Rehearing Jan. 17, 1989.

On Rehearing En Banc July 11, 1989.

Rehearing Denied Nov. 17, 1989.

Phillip J. Goldstein, Goldstein Professional Assoc., Daniels & Hicks and Ralph O. Anderson, Miami, for appellants/cross-appellees.

Simon, Schindler, Hurst & Sandberg and Thomas M. Pflaum, Magill & Lewis and R. Fred Lewis, Miami, for appellees and cross-appellants.

Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.

BASKIN, Judge.

Appellants Guy Tuttle and his mother Janet Tuttle sued Miami Dolphins, Ltd.; Joseph Robbie and South Florida Sports Corporation, as General Partners of Miami Dolphins, Ltd.; Harry M. Stevens, Inc. [Stevens], beer concessionaire under a contract with Miami Dolphins, Ltd.; and the City of Miami [City] to recover damages for injuries Guy sustained when he fell through a defective ramp rail guard at the Orange Bowl. In their fourth amended complaint, appellants alleged that Guy, then seventeen, became intoxicated upon consuming beer that he purchased at the The Tuttles appeal the trial court's order, contending that the trial court abused its discretion in granting a new trial. Miami Dolphins, Ltd., and Stevens cross-appeal, maintaining that when appellants failed to prove that the sale of alcoholic beverages was willful, the trial court should have directed a verdict in their favor. After careful consideration of the law and the evidence, we conclude that both the appeal and the cross-appeal have merit; we reverse.

Orange Bowl while attending a Miami Dolphins football game. They asserted that they were entitled to recover damages predicated on the vicarious liability of Miami Dolphins, Ltd., and the direct liability of Stevens for the unlawful sale of beer to a minor. Their lawsuit also contended that the City failed to maintain the premises in a reasonably safe condition. The jury returned a verdict awarding Guy $475,000 and awarding Mrs. Tuttle $80,000 on her separate claim, apportioning the negligence of the respective parties: Dolphins/Stevens, 14%; City of Miami, 40%; Guy, 45%; Mrs. Tuttle, 1%. ¹ The trial court granted appellees' ensuing motions for a new trial.

A decision to grant a new trial is directed to the sound, broad discretion of the trial court. The court may grant a new trial when it "concludes that the verdict is against the manifest weight of the evidence," or determines that the jury has either been influenced by considerations outside the record or misled by the force and credibility of the evidence. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). However, this "broad discretion" does not give a trial judge unbridled discretion to order a new trial. White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978). Thus, in order to facilitate review of orders granting a new trial, a trial court must set forth its reasons so that the appellate court may then ascertain whether the trial court has abused its discretion. Baptist Memorial Hosp., Inc. v. Bell, 384 So.2d 145 (Fla.1980); Stewart Bonded Warehouse, Inc. v. Bevis, 294 So.2d 315, 317 (Fla.1974). In Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), the supreme court enunciated standards for preparing an order granting a new trial:

Although an order for a new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla. 3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.

Wackenhut, 359 So.2d at 435.

In reviewing a discretionary grant of a new trial, appellate courts apply a test of reasonableness to determine whether the trial court abused its discretion. If reasonable people could differ as to the propriety of the action taken by the trial court, the action is not unreasonable and there can be no finding of an abuse of discretion. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981); Baptist Memorial; Scandinavian World Cruises (Bahamas), Ltd. v. Cronin, 509 So.2d 1277 (Fla. 3d DCA 1987); Rivera v. White, 386 So.2d 1233 (Fla. 3d DCA 1980).

The trial court articulated five reasons for granting a new trial:

(a) The jury's finding that the MIAMI DOLPHINS and STEVENS were guilty of negligence which was a legal cause of injury to plaintiff, GUY TUTTLE (hereinafter GUY TUTTLE), is contrary to the manifest weight of the evidence. The finding of negligence had to be based upon STEVENS selling beer to GUY TUTTLE, a minor, for which the MIAMI DOLPHINS were vicariously liable, in (b) The jury's finding that MIAMI was guilty of negligence which was a legal cause of injury to GUY TUTTLE was contrary to the manifest weight of the evidence. The testimony of MIAMI's employees, Richard S. Roach, Edmond A. Connor and Walter Golby, did not provide any evidence from which the jury could have lawfully found that there was a failure by the city to properly maintain the ramps at the Orange Bowl. Their testimony established that MIAMI had never experienced an accident of the type of the one involving GUY TUTTLE prior to the date of his injury even though the ramps have been used by hundreds of thousands of patrons of the Orange Bowl; that it had a continuing inspection and maintenance program; and, that it had a method of warning Orange Bowl patrons of dangerous conditions that were discovered during stadium events. There was no evidence from any of the liability witnesses who testified from which the jury could have found that it was reasonably foreseeable that GUY TUTTLE, or anyone else, would engage in the course of unusual conduct upon which he embarked on the night of the subject accident and that led directly to the happening of the accident in which he was injured. His actions were graphically described in the testimony of JOHN STEWART HAYES. The testimony of Howard Harrenstein misled the jury into incorrectly assuming that MIAMI had a duty to guard against such exceptional or unusual occurrences. The testimony of Sher Fishman, a purported eyewitness to the accident, was so totally contrary to the physical facts of GUY TUTTLE's accident as to be unworthy of belief.

the context of this case. However, the statute governing liability of a person who sells alcoholic beverages to a minor for injury resulting from intoxication requires that the selling of the alcoholic beverage to the minor must be done willfully. Section 760.125, Florida Statutes. The testimony of GUY TUTTLE and his companions, Todd Danko and Jeff Cove, as to the manner in which he purportedly bought beer at the Orange Bowl on the night of November 20, 1980, the date of the accident, provided no evidentiary basis from which the jury could have lawfully found that STEVENS willfully sold beer to a minor. There was no other evidence adduced concerning the sale of the beer. Consequently, there was neither allegation nor proof of a willful sale of alcoholic beverages by STEVENS to a minor that the cited statute requires to support the finding of actionable negligence on the part of STEVENS and the MIAMI DOLPHINS.

(c) The jury's finding that the plaintiff, JANET TUTTLE (hereinafter JANET TUTTLE), was guilty of only 1% negligence in the premises is contrary to the manifest weight of the evidence. The testimony of JANET TUTTLE to the effect that she was unaware that her son, GUY TUTTLE, had long been heavily indulging in the use of alcoholic beverages prior to the subject accident is not worthy of belief. The Jackson Memorial Hospital records that were introduced into evidence clearly show that GUY TUTTLE had a long standing drinking habit of major proportion which would have had to been noticeable to JANET TUTTLE had she been exercising proper supervision and care of her minor son. Nonetheless, she never advised her son that he was not of legal age to drink alcoholic beverages or that excessive consumption of alcoholic beverages led to the type of irrational conduct in which he was engaged at the time of the subject accident.

(d) Based upon the testimony of KENNETH LASSITER, M.D., and the information contained in the Jackson Memorial Hospital records, GUY TUTTLE's testimony that he had not consumed any alcoholic beverages before arriving at the Orange Bowl on the night of the subject accident is not worthy of belief. The jury was, therefore, deceived as to the force and credibility of the evidence in that respect.

(e) The amount of the damages awarded to JANET TUTTLE shocked the judicial conscience of the Court, because, there was no reasonable basis for award (f) For the foregoing reasons, considered individually and collectively, in the judgment of the Court the verdict in this case is contrary to the law on the issues presented; and, the verdict does not square with right and justice.

of that magnitude in her testimony or that of GUY TUTTLE. It is evident that the jury acted through sympathy, prejudice or some other improper motive.

Turning first to the Tuttles' appeal, we consider their argument that the seller's failure to ask for proof of age before selling beer ² to a minor is evidence of the willfulness the trial court found lacking. ³ They maintain that the...