Zanoletti v. Norle Properties, Corp.
| Decision Date | 19 February 1997 |
| Docket Number | No. 96-1487,96-1487 |
| Citation | 688 So.2d 952 |
| Parties | 22 Fla. L. Weekly D456 Juana ZANOLETTI, Appellant, v. NORLE PROPERTIES, CORP., Appellee. |
| Court | Florida District Court of Appeals |
Levine & Finger and David J. Finger, Miami, for appellant.
Kubicki & Draper and Elizabeth M. Rodriguez, Miami, for appellee.
Before JORGENSON and SHEVIN, JJ., and BARKDULL, Senior Judge.
Zanoletti appeals a final judgment entered after a jury verdict in favor of the appellee Norle Properties, Inc. (Norle). The sole issue on appeal is whether the trial judge erred in excluding Zanoletti's expert witness on rebuttal. We reverse.
Juana Zanoletti was injured when she was struck by a truck driven by Norle's employee. Zanoletti testified that she was crossing an intersection while the "walk" sign was illuminated and that she had looked both ways before proceeding into the intersection. The driver conceded that the "walk" sign was in fact illuminated, but asserted that he had already driven past Zanoletti when she walked into the back of the truck. To support this contention, Norle presented an accident reconstruction expert who testified that in his opinion, Zanoletti was the sole cause of the accident because she failed to yield to Norle's truck as it was making the turn and because she failed to look at oncoming traffic or signals in the area. The defense rested and Zanoletti sought to introduce the testimony of its accident reconstruction expert on rebuttal. The trial court ruled that Zanoletti was not surprised by the testimony and so it was not appropriate rebuttal testimony. 1 Zanoletti made a proffer that her expert would have testified that based upon his reconstruction of the accident, Zanoletti entered the intersection before the truck made its turn and that Norle's expert's calculations were erroneous. The jury found that Norle was not liable for the accident and Zanoletti appealed.
Zanoletti's sole issue on appeal is that the trial court erred in excluding the rebuttal testimony of her accident reconstruction expert. Zanoletti relies on such cases as McFall v. Inverrary Country Club, Inc., 622 So.2d 41 (Fla. 4th DCA 1993), Young-Chin v. City of Homestead, 597 So.2d 879 (Fla. 3d DCA 1992) and Heberling v. Fleisher, 563 So.2d 1086 (Fla. 4th DCA 1990) for the proposition that a plaintiff is not required to offer evidence in her case in chief to disprove the defendant's theory of the case as long as it is not cumulative and not necessary to the establishment of a prima facie case of liability. Norle however, contends that the trial court was correct because 1) Zanoletti knew what Norle's expert testimony would be prior to trial, 2) Zanoletti's expert testimony was essential to prove her case, 3) the testimony was cumulative of evidence presented during Zanoletti's case in chief and 4) if there was any error, it was invited error because Zanoletti could have presented its expert during its case in chief.
In Young-Chin v. City of Homestead, this court held that limiting rebuttal which goes to the heart of the principal defense and which is not cumulative is an abuse of discretion. Young-Chin, 597 So.2d at 883. Stated otherwise, a plaintiff has no obligation to anticipate the defendant's theory of the case and present evidence during the case in chief to disprove that theory. McFall, 622 So.2d at 44; Heberling, 563 So.2d at 1087. In Heberling, as in this case, the defendants knew well in advance what the defense posture would be, but the court held that a plaintiff need not open the door to an anticipated defense. The case relied upon for affirmance, Rhodes v. Asplundh Tree Expert Co., 528 So.2d 459 (Fla. 3d DCA 1988), is distinguishable. In that case the plaintiff sought to call a second expert witness on rebuttal when he had already presented an expert who testified to the same theory in his...
To continue reading
Request your trial
-
Astill v. Clark
...case-in-chief is likewise not determinative because Astill need not anticipate and then disprove defendant's potential theory of the case. See id.; see also McFall v. Inverrary Country Club, Inc., 622 So.2d 41, 44 (Fla.Dist.Ct.App.1993) (stating plaintiff has no duty to anticipate and dispr......
-
Gutierrez v. Vargas
...to challenge the calculations of a defense expert is permissible rebuttal evidence." Id. at 672 (citing Zanoletti v. Norle Props. Corp. , 688 So.2d 952 (Fla. 3d DCA 1997) ). Therefore, Dr. Croker's testimony was permissible rebuttal, and the trial court did not abuse its discretion by admit......
-
S & I Investments v. Payless Flea Market, Inc., No. 4D08-486 (Fla. App. 4/7/2010)
...the "new versus renewal" determination as a matter of law; the adverse ruling, itself, was not invited. See Zanoletti v. Norle Props., Corp., 688 So. 2d 952, 954 (Fla. 3d DCA 1997) ("Invited error occurs when the appellant somehow induced the specific ruling by her affirmative action or ina......
-
Gerber v. Iyengar, 97-1481
...the theory of defense. See Mendez v. John Caddell Constr. Co., 700 So.2d 439, 440-41 (Fla. 3d DCA 1997); Zanoletti v. Norle Properties, Corp., 688 So.2d 952, 954 (Fla. 3d DCA 1997). In Young-Chin v. City of Homestead, 597 So.2d 879 (Fla. 3d DCA 1992), this Court stated that a trial judge ab......