41
Fla. L. Weekly D2381cTop of Form

Torts
— Premises liability — Slip and fall — New trial — In granting motion for
new trial, trial court reversibly erred in finding that evidence presented to
jury clearly demonstrated that plaintiff’s injuries were result of defendant’s
failure to follow its own safety policies and procedures — Trial court erred
in equating standard of care with compliance with internal policies and
procedures, effectively determining that breach of policies and procedures is a
per se breach of standard of care — Where issue presented by motion for new
trial, although couched as being based on weight of evidence, was truly a legal
issue of standard of care, and only way that court could have reached result of
granting new trial was based on legal error, order granting new trial must be
reversed and remanded for reinstatement of jury verdict — To extent trial
court did not rely upon its erroneous conclusion that a violation of internal
policies was a per se breach of standard of care, trial court clearly abused
discretion in granting new trial where manifest weight of evidence of causation
was not at issue

WAL-MART
STORES, INC., Appellant, v. SANDY WITTKE, Appellee. 2nd District. Case No.
2D15-4099. Opinion filed October 21, 2016. Appeal from the Circuit Court for
Manatee County; John F. Lakin, Judge. Counsel: Paul B. Fulmer, III and Richard
B. Mangan, Jr. of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.,
Tampa, for Appellant. Susan J. Silverman, Sarasota; and Melton H. Little of
Kallins, Little & Delgado, P.A., Palmetto, for Appellee.

(BLACK,
Judge.) In December 2009, Sandy Wittke slipped and fell at a Walmart store in
Bradenton, Florida. Ms. Wittke filed suit against Wal-Mart Stores, Inc., in
August 2012, and the case was tried in June 2015. After deliberating for about
one hour, the jury returned a verdict in favor of Wal-Mart. Following the
verdict, Ms. Wittke filed a motion for a new trial. The trial judge granted the
motion and set aside the jury verdict. Wal-Mart appeals from that order and
asserts that the motion for new trial should have been denied. We agree and
reverse.

Wal-Mart
claims the trial court reversibly erred in two ways by granting the motion for
new trial. First, it argues that the court erroneously found that Wal-Mart’s
failure to follow safety policies and procedures required a negligence finding
against Wal-Mart. Second, Wal-Mart argues that the court abused its discretion
because competent substantial evidence was presented to allow a reasonable jury
to find in favor of Wal-Mart.

In
the order granting the motion for new trial, the court found that “the evidence
presented to the jury during trial clearly demonstrated that [Ms. Wittke’s]
injuries were the result of [Wal-Mart’s] failure to follow its own safety
policies and procedures.” Thus, the trial court equated the standard of care
with compliance with internal policies and procedures, effectively determining
that a breach of policies and procedures is a per se breach of the standard of
care. This was error. “[A] party’s internal rule does not itself fix the legal
standard of care in a negligence action . . . .” Mayo v. Publix Super Mkts.,
Inc., 686 So. 2d 801, 802 (Fla. 4th DCA 1997); see also Pollock
v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 937 (Fla. 2004) (“While a
written policy or manual may be instructive in determining whether the alleged
tortfeasor acted negligently in fulfilling an independently established duty of
care, it does not itself establish such a legal duty vis-a-vis individual
members of the public.”); Dominguez v. Publix Super Mkts., Inc., 187 So.
3d 892, 895 (Fla. 3d DCA 2016), reh’g denied (Mar. 28, 2016)
(“[I]nternal safety policies do not themselves establish the standard of care
owed to the plaintiff.”); Steinberg v. Lomenick, 531 So. 2d 199, 200
(Fla. 3d DCA 1988) (“[T]he existence of an internal rule does not itself fix
the standard of care.”). Internal policies and procedures may be admissible if
they are relevant to the standard of care, Mayo, 686 So. 2d at 802;
however, “evidence that the rule was violated is not evidence of
negligence unless and until the jury finds . . . that the internal rule
represents the standard of care,” Steinberg, 531 So. 2d at 201 (second
emphasis added).1 The trial court’s elevation of the
alleged violation of internal policies and procedures to the status of a legal
duty necessitates reversal of the order granting Ms. Wittke a new trial.

“[W]hen
an appellate court has determined that a trial court’s grant of a new trial is premised,
at least in part, on an error of law, the inquiry then becomes whether the
trial court would have granted a new trial but for the error of law.” Van v.
Schmidt, 122 So. 3d 243, 246 (Fla. 2013). “[A]n order granting a motion for
new trial is subject to a heightened abuse of discretion standard.” Meadowbrook
Meat Co. v. Catinella, 196 So. 3d 373, 373-74 (Fla. 2d DCA 2015). “[I]f an
appellate court determines that reasonable persons could differ as to the
propriety of the action taken by the trial court, there can be no finding of an
abuse of discretion.” Van, 122 So. 3d at 252-53. Reviewing the motion
for new trial and the argument made therein — that the jury’s verdict was
against the weight of the evidence as to a breach of the standard of care —
reasonable minds could not differ on the propriety of granting a new trial.
“[T]he closer an issue comes to being purely legal in nature, the less
discretion a trial court enjoys in ruling on a new trial motion.” Van,
122 So. 3d at 258 (quoting Tri-Pak Mach., Inc. v. Hartshorn, 644 So. 2d
118, 119-20 (Fla. 2d DCA 1994) (emphasis omitted)). In this instance, the issue
presented by the motion for new trial, although couched as being based on the
weight of the evidence, was truly a legal issue of the standard of care. Based
on the argument in the motion, “the only way that the trial court could have
reached the result of granting a new trial was based on the legal error,” and
we must reverse and remand for reinstatement of the jury verdict. See Van,
122 So. 3d at 261. Moreover, to the extent the trial court did not rely upon
its erroneous conclusion that a violation of internal policies was a per se
breach of the standard of care, the trial court clearly abused its discretion
in granting the new trial where the manifest weight of the evidence of
causation was not at issue.2

Accordingly,
the order granting the motion for new trial is reversed and we remand with
instructions to reinstate the jury verdict.3

Reversed
and remanded with instructions. (SILBERMAN and BADALAMENTI, JJ., Concur.)

__________________

1In
this case, Ms. Wittke did not sustain her burden of proving that the 2003
policies and procedures of an Illinois Wal-Mart, introduced over objection by
Wal-Mart, were relevant to the Florida Wal-Mart’s standard of care in 2009.

2The
verdict form reflects that the jury answered the question “[w]as there
negligence on the part of WAL-MART STORES, INC. which was a legal cause of
injury to SANDY WITTKE” in the negative. The jury was thus not required to
consider the remaining questions on the verdict form. Further, it was
undisputed that it was raining at the time of the fall. The Wal-Mart safety
team leader testified that shortly after the fall Ms. Wittke acknowledged,
“It’s my fault. I shouldn’t have been running in the rain.” The jury also
viewed surveillance video of the area where the fall occurred showing two fans
and a large yellow warning cone marking the area of the wet floor where the
fall occurred.

3We
decline to address Wal-Mart’s claims regarding the formal charges brought by
the Florida Judicial Qualifications Commission against the trial judge with
regard to the judge’s request for and acceptance of Major League Baseball
tickets from the firm representing Ms. Wittke during the pendency of
trial court litigation in the case — including while the motion for new trial
was under advisement. As a result of the trial judge’s retirement, the charges
have been dismissed.