Torts
— Premises liability — New trial — Argument — Trial court did not abuse
discretion in denying defendant’s motion for new trial on the basis of improper
argument by plaintiff’s counsel — Arguments which bolstered credibility of
witness, denigrated defendant for asserting a defense, and appealed to
conscience of community were improper, but prejudice to defendant caused by the
arguments was mitigated by curative instructions after defendant had objected
to the arguments — Cumulative effect of improper objected-to and
unobjected-to, uncured comments did not deprive defendant of a fair trial

CITY OF MIAMI, Appellant, vs. SHEILA KINSER, Appellee. 3rd
District. Case No. 3D15-370. L.T. Case No. 11-14076. Opinion filed March 23,
2016. An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake,
Judge. Counsel: Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant
City Attorney, for appellant. Feiler & Leach, P.L., and Martin E. Leach,
for appellee.

(Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.)

(ROTHENBERG, Judge.) The City of Miami (“the City”) appeals
the trial court’s denial of its motion for a new trial in a premises liability
negligence suit after the plaintiff, Sheila Kinser (“Kinser”), received a
favorable jury verdict. Because the cumulative effect of the objected-to
improper statements did not deprive the City of a fair trial and the jury
verdict was not against the manifest weight of the evidence, we find no abuse
of discretion in the denial of the City’s motion for a new trial. We therefore
affirm the judgment below.

It was undisputed that Kinser injured her knee and hip when
she fell through a missing section of a dock while she was walking backwards
and sideways, pulling a boat towards the shore. Kinser sued the City for
negligence, and in its answer, the City admitted that it was responsible for
the maintenance of the dock and raised only one defense — that Kinser was
comparatively negligent.

The jury returned a verdict in favor of Kinser assigning
100% of the fault to the City. The City moved for a new trial, arguing that (1)
the cumulative effect of the improper statements made by Kinser’s counsel
during closing arguments deprived the City of a fair trial, and (2) the jury
verdict apportioning no fault to Kinser was against the manifest weight of the
evidence. The trial court denied the City’s motion for a new trial, and the City
appealed.

A motion for a new trial based on improper comments made
during closing arguments should be granted if the comments were so highly
prejudicial and inflammatory that the opposing party was denied its right to a
fair trial. Tanner v. Beck ex rel. Hagerty, 907 So. 2d 1190, 1196 (Fla.
3d DCA 2005). A motion for a new trial may also be granted where the jury
verdict is against the manifest weight of the evidence. Weatherly v. Louis,
31 So. 3d 803, 805 (Fla. 3d DCA 2009). However, when reviewing a trial court’s
ruling on a motion for a new trial,

. .
. an appellate court must recognize the broad discretionary authority of the
trial judge and apply the reasonableness test to determine whether the trial
judge committed an abuse of discretion. If 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.

Brown v. Estate of Stuckey, 749 So. 2d 490, 497-98
(Fla. 1999); see Allstate Ins. Co. v. Manasse, 707 So. 2d 1110,
1111 (Fla. 1998).

During closing arguments, the City objected to several
arguments made by Kinser’s counsel, which we divide into three categories:
improper bolstering of a witness’s credibility, improper denigration of a
party’s defense, and improper appeal to the conscience of the community.
Although we conclude that the trial court did not abuse its discretion by
determining that in this case the improper, objected-to statements made during
closing arguments were not so prejudicial as to deprive the City of a fair
trial, we caution trial counsel that, under different facts and circumstances,
and had the City objected to additional and perhaps more egregious comments
made by Kinser’s counsel, a new trial may have been required. See Murphy
v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1031 (Fla. 2000) (setting the
following high threshold before granting a new trial based on unobjected-to
comments during closing arguments: “[W]e hold that before a complaining party
may receive a new trial based on unobjected-to closing argument, the party must
establish that the argument being challenged was improper, harmful, incurable,
and so damaged the fairness of the trial that the public’s interest in our
system of justice requires a new trial.”).

I. Improper Bolstering

It is well established that an attorney is not permitted to
express a personal opinion bolstering the credibility of his witness. R.
Regulating Fla. Bar 4-3.4(e) (providing that a “lawyer must not . . . in trial,
state a personal opinion about the credibility of a witness unless the
statement is authorized by current rule or case law”); Airport Rent-A-Car,
Inc. v. Lewis, 701 So. 2d 893, 896 (Fla. 4th DCA 1997); Forman v.
Wallshein, 671 So. 2d 872, 875 (Fla. 3d DCA 1996); Muhammad v. Toys “R”
Us, Inc., 668 So. 2d 254, 258 (Fla. 1st DCA 1996); Walt Disney World Co.
v. Blalock, 640 So. 2d 1156, 1158 (Fla. 5th DCA 1994). Nevertheless, during
his closing argument, Kinser’s counsel improperly bolstered the credibility of
Kinser’s testimony by stating:

Well,
we heard about what Ms. Kinser told you, and, you know, there’s an instruction
about the frankness and candor of witnesses and why they say what they say, and
I want to talk about that a little bit. Ms. Kinser looked you in the eye, she
didn’t make anything up.

The City properly objected to this statement, and the trial
court instructed the jury to disregard it. Kinser’s counsel, however, continued
to bolster the credibility of Kinser’s testimony by stating:

She
didn’t claim things were hurt that weren’t hurt. She acknowledged that she had
problems with her feet, she acknowledged what her limitations are, and she was
very honest with you about everything she did.

The City objected, and the trial court instructed the jury
again to disregard the improper comment. The impact of these improper
statements was enhanced because while Kinser’s counsel told the jury that
Kinser was “very honest” and “she didn’t make anything up,” he insinuated that
the City’s witnesses were dishonest — that they were paid to “make stuff up.”

And
then you have their people who are paid, between them, almost $10,000, about
half of what she paid treating her injuries, just to say, she’s not hurt, and
if she is, it was something else. Can I have my check, please? It’s not close.
It’s not close.

. .
. .

That’s
another one of those Dr. Ramirez misdirection plays.

. .
. .

But
what do we know objectively from the reports of the films? Not doctors making
stuff up . . .

II. Denigrating the City for Asserting a Defense

It is also improper for a plaintiff’s counsel to denigrate
the defense for asserting a valid defense. See Carnival Corp. v.
Pajares, 972 So. 2d 973, 977 (Fla. 3d DCA 2007) (“The most grievous
arguments made by [plaintiff’s] counsel are those suggesting that [the
defendant] acted improperly by defending [against plaintiff’s] claims, and
denigrating its defenses.”); State Farm Mut. Auto. Ins. Co. v. Revuelta,
901 So. 2d 377, 380 (Fla. 3d DCA 2005) (finding that the plaintiff “improperly
insinuated that [the defendant] acted in bad faith in defending this action”).

The City argues that Kinser’s counsel improperly denigrated
its defense by stating: “It’s another thing all together to say, we know we
created this problem, but we did nothing wrong. When a bear steps in a trap and
breaks its leg, is it the bear’s fault?” The City objected to this comment, but
the trial court overruled the objection as constituting proper argument. We
conclude that this comment comes close to crossing the line between proper and
improper argument, as it suggests that the City’s comparative negligence
defense was frivolous and that the City was wrong to even defend the case.
However, when Kinser’s counsel told the jury that an argument made by the City
was “ridiculous,” we have no difficulty finding that the line between proper
and improper argument had been crossed.

III. Improperly Appealing to the Conscience of the
Community

When an attorney makes “impassioned and prejudicial pleas
intended to evoke a sense of community law through common duty and
expectation,” the attorney generates unfair prejudice by creating an improper
“us-against-them” mentality, which at best is a “distraction from the jury’s
sworn duty to reach a fair, honest and just verdict according to the facts and
evidence presented at trial.” Blue Grass Shows, Inc. v. Collins, 614 So.
2d 626, 627 (Fla. 1st DCA 1993) (quoting S.H. Inv. & Dev. Corp. v.
Kincaid, 495 So. 2d 768, 771 (Fla. 5th DCA 1986), review denied, 504
So. 2d 767 (Fla. 1987) (quoting Westbrook v. Gen. Tire & Rubber Co.,
754 F.2d 1233, 1238-39 (5th Cir. 1985))).

The City contends that Kinser’s counsel improperly appealed
to the conscience of the community by making the following statement:

Nothing
would be better than if juries had the ability to take a magic wand and, after
hearing a case, go, we make it go away. It’s gone. It didn’t happen. That would
be great, but we don’t have that. That technology, unfortunately, hasn’t been
invented. All you have is this, you have your pen, and that’s a very powerful
instrument, because that’s your instrument to deliver justice.

We disagree because nothing in this comment suggests that
Kinser’s counsel attempted to make an “us-against-them” argument, and it does
not “evoke a sense of community law.” The same cannot be said, however, of the
following argument, which we find was an improper appeal to the conscience of
the community: “She doesn’t get to come back. This is her one chance to be
before you. This is her one shot. It’s all of your one shot to get it right, so
go back there and take your instrument and get it right.” The trial court
correctly sustained the City’s objection to this argument as the jury’s role is
to fairly evaluate the evidence before it in order to reach a verdict based on
the law and the facts.

IV. The Unobjected-to Improper Arguments

In addition to the above objected-to arguments, Kinser’s
counsel told the jury that the City’s doctors were “courtroom doctors” who
“have their little tricks” and were paid to say that Kinser was not hurt, and
the City paid these doctors and “[f]or the money they sent, they got what they
needed.” These arguments were clearly improper. But because they were not
objected to, the City must demonstrate that they could not have been cured by a
timely objection and curative instruction, and that they were so damaging to
the fairness of the trial that the “public’s interest in our system of justice
requires a new trial.” Murphy, 766 So. 2d at 1031. The City failed to
meet this burden.

CONCLUSION

While it is clearly improper for an attorney to bolster the
credibility of a witness, attack a party for putting on a valid defense, or
appeal to the conscience of the community, most of the improper arguments were
timely objected to; curative instructions were given by the trial court; and the
prejudice to the City caused by these improper arguments was mitigated by the
curative instructions. See Tanner, 907 So. 2d at 1197. We
conclude that the cumulative effect of the improper objected-to and
unobjected-to, uncured comments did not, given the facts of this case, deprive
the City of a fair trial.

We also find that the City’s remaining argument, that the
jury verdict is against the manifest weight of the evidence, is without merit.
Accordingly, we affirm the trial court’s denial of the City’s motion for a new
trial.

Affirmed.

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