The Defense Goes Too Far While Arguing a Florida Premises Liability Case

photo_21418_20120211.jpgAs we have explained in earlier posts, Florida has become a comparative negligence state. This means that a plaintiff whose own conduct contributes to his injuries will have his or her award reduced by the percentage of fault that can be attributed to him.

In a case decided last year, a plaintiff challenged the trial court’s judgment, which found her 80% comparatively negligent for her slip and fall at Wal-Mart, and also appealed the denial of her motion for new trial. The store cross-appealed on the grounds that the trial court had improperly dubbed its proposal for settlement invalid.

The case arose when the plaintiff slipped and fell in the store. She claimed there was something slippery on the floor and that she was injured such that she required neck and shoulder surgery.


During a cross-examination, the defense asked the plaintiff’s expert and treating neurologist questions about his relationship with personal injury firms. It asked him about firms that referred him medical work, claiming that he had a business relationship with at least one personal injury law firm. The doctor did not admit that there was any truth to this claim.

Later the defense asked whether he was unaware of 5-10 personal injury plaintiffs who had been driven to him in a van in order to receive percutaneous discectomies for the purpose of litigation. The doctor answered somewhat unintelligibly, but to the effect that he was not aware of their form of transportation. He did acknowledge when asked about financial compensation that he received payment from the patients, but not their lawyers.

The jury found the store was 20% negligent. It awarded the plaintiff $49,158 for medical expenses plus $50,000 for pain and suffering. 20% of that (the share that was found to be the store’s negligence) was only $19,800.

Defense counsel also inquired about Dr. Gomez’s financial compensation from the attorneys based on referrals. Dr. Gomez acknowledged that he receives payment from patients, but did not admit he received payment from their attorneys. The plaintiff’s attorney objected to the question on the grounds of relevance, but the trial judge overruled the objection.

During the closing argument, the plaintiff’s attorney argued that the doctor had relationships with personal injury law firms who signed up plaintiffs and bussed them to see the doctor. The plaintiff’s attorney again objected that these facts weren’t in evidence, but the trial court overruled the objection and told the jury to rely on its own memory of the evidence.

The plaintiff appealed. The appellate court’s standard for deciding motions for a new trial based on an attorney’s improper argument is whether the commentary is highly prejudicial and inflammatory. Were the remarks egregious enough to be a harmful mistake? The appellate court here explained that a harmless error is one where most likely an error didn’t contribute to the judgment.

The plaintiff in this case argued that there was no evidence to support the argument offered by the defense during the closing arguments. The defense had gone so far as to argue that the doctor himself had bussed the clients for purposes of litigation.

The appellate court explained that the defense can ask these types of questions related to credibility, but when it doesn’t receive the answers it wants, it cannot then argue in closing as if it had. The party not appealing bears the burden of showing that the argument more likely than not didn’t influence the jury’s decision.

The appellate court concluded that the store had not shown that its commentary was harmless. In spite of medical bills of $150,000, the jury awarded the plaintiff only $49,158 for medical expenses. The appellate court reversed and sent the case to be tried again on the issue of damages only.

An attorney knowledgeable about the procedures and rules of Florida personal injury law can make all the difference if you need to file a slip and fall lawsuit. Call the experienced South Florida premises liability attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

More Blogs

Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case, South Florida Personal Injury Lawyers Blog, May 10, 2013
Florida Appellate Court Rules on Issue of Jury Selection, South Florida Personal Injury Lawyers Blog, May 8, 2013

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