TIMOTHY PORTER, APPELLANT/CROSS-APPELLEE,
v.
VISTA BUILDING MAINTENANCE SERVICES, INC., APPELLEE/CROSS-APPELLANT
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In this slip-and-fall personal injury case, the court held that the trial court erred in admitting evidence of the plaintiff's prior alcohol abuse where it was undisputed that he was sober at the time of the incident. The court reversed and remanded for a new trial, finding that the prejudicial effect substantially outweighed any probative value and that the plaintiff's attorney's strategic response did not waive the error.
The trial court erred in admitting evidence of the plaintiff's prior alcoholism because, where the plaintiff's sobriety at the time of the incident was undisputed, the probative value of such evidence was substantially outweighed by the danger of unfair prejudicial effect under Florida Statute § 90.403. The error was not harmless and was not waived by the plaintiff's attorney's good-faith attempt to minimize the prejudicial impact during opening argument.
[1] Evidence of a plaintiff's prior alcohol abuse is inadmissible in a slip-and-fall case when it is undisputed that the plaintiff was sober at the time of the incident, as i…
[2] A party's attempt to mitigate the prejudicial impact of erroneously admitted evidence does not waive the error or render it harmless.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Where, as here, it was undisputed that the plaintiff was sober at the time of the incident, the probative value of such evidence, if any, was substantially outweighed by the danger of unfair prejudicial effect.”
Establishes the court's core holding on why the evidence was inadmissible under § 90.403, Fla.Stat.
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Join FLexlaw to unlock all legal intelligenceTimothy Porter was injured in a slip-and-fall incident at a Vista Building Maintenance Services facility. It was undisputed that Porter was sober at t…
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PER CURIAM.
The denial of the plaintiffs pretrial motion for an order prohibiting the defendant from injecting evidence of the plaintiffs previous abuse of alcohol into the slip-and-fall trial was erroneous. Where, as here, it was undisputed that the plaintiff was sober at the time of the incident, the probative value of such evidence, if any, was substantially outweighed by the danger of unfair prejudicial effect. § 90.403, Fla.Stat. (1991); Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989); Locke v. Brown, 194 So. 2d 45 (Fla. 2d DCA 1967).
The trial court’s erroneous pretrial ruling admitting evidence of the plaintiffs alcoholism caused his attorney to mention it during opening argument, in an effort to diffuse its impact. On cross-examination of the plaintiff, defense counsel reminded the jury that Porter was an alcoholic who had “slipped and fallen off the wagon every year.” Nonetheless, plaintiffs counsel’s attempt to diminish the prejudicial impact of the damaging evidence did not, contrary to appellee’s contentions, waive the error, or render the error harmless. A party cannot be penalized for his good-faith reliance on a trial court’s incorrect ruling. See John Hancock Mut. Life Ins. Co. v. Zalay, 522 So. 2d 944 (Fla. 2d DCA 1988) (where evidentiary ruling is subsequently found to be erroneous, litigant must be granted an opportunity to present his case under correct ruling).
The amount of damages awarded to the plaintiff clearly reflects that the jury was influenced by the alcoholism-related evidence. See Ballard v. American Land Cruisers, Inc., 537 So. 2d 1018 (Fla. 3d DCA 1988) (low damage award explainable only as a result of impact of prejudicial argument), rev. denied, 545 So. 2d 1366 (Fla.1989).
Reversed and remanded for a new trial on all issues.
SCHWARTZ, C.J., and FERGUSON, J., concur.
BARKDULL, Judge,
dissenting.
I respectfully dissent upon the reasoning found in the following authorities. Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. 3d DCA 1986); Fredericson v. Levinson, 495 So. 2d 842 (Fla. 3d DCA 1986); OBrien v. Ortiz, 467 So. 2d 1056 (Fla. 3d DCA 1985).
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Sheffield v. Superior Ins. Co., 800 So. 2d 197 (Fla. 2001)…ict Court of Appeal that expressly and [*199] directly conflicts with the Third District Court of Appeal’s decisions in Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So. 2d 596 (Fla. 3d DCA 2000), and Porter v. Vista Building Maintenance Services, 630 So. 2d 205 (Fla. 3d DCA 1993). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. BACKGROUND Petitioner Mary Ann Sheffield sustained soft tissue injuries as a passenger in an automobile that was hit from the rear while the vehicle was stopped at a traf…
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Edwards v. Orkin Exterminating Co., Inc., 718 So. 2d 881 (Fla. 3d DCA 1998)…So. 2d 1167, 1171 (Fla. 3d DCA 1985). The damages award reflects that the jury was improperly prejudiced against Edwards because of the irrelevant and inad-missable evidence that Orkin introduced. See Porter v. Vista Bldg. Maintenance Servs., Inc., 630 So. 2d 205, 206 (Fla. 3d DCA 1993), review denied, 640 So. 2d 1109 (Fla. 1994); Padrino v. Resnick, 615 So. 2d 698, 699 (Fla. 3d DCA 1992); Ballard v. American Land Cruisers, Inc., 537 So. 2d 1018, 1020 (Fla. 3d DCA 1988), review denied, 545 So. 2d 1366 (Fla.1…
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Sheffield v. Superior Ins. Co., 741 So. 2d 533 (Fla. 1st DCA 1999)…y this agreement and we do not hold otherwise. Perhaps it made tactical sense for Ms. Sheffield to take the calculated risk of acclimating the jury in this way, given the trial court's erroneous ruling. See Porter v. Vista Bldg. Maintenance Servs., 630 So. 2d 205, 206 (Fla. 3d DCA 1993) (holding opening statement did not waive objection); United States v. Garcia, 988 F. 2d 965, 967-68 (9th Cir.1993). But statements of counsel are not evidence.…1 / 2
Authorities Cited
- Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989)
- Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. 3d DCA 1986)
- John Hancock Mut. Life Ins. Co. v. Zalay, 522 So. 2d 944 (Fla. 2d DCA 1988)
- Locke v. Brown, 194 So. 2d 45 (Fla. 2d DCA 1967)
- Fredericson v. Levinson, 495 So. 2d 842 (Fla. 3d DCA 1986)
- Ballard v. Am. Land Cruisers, Inc., 537 So. 2d 1018 (Fla. 3d DCA 1988)
- McKENZIE v. State, 467 So. 2d 1056 (Fla. 3d DCA 1985)
- O'Brien v. Ortiz, 467 So. 2d 1056 (Fla. 3d DCA 1985)