Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

April 14, 2017 by admin

Torts — Premises liability — Slip and fall — Juror interview — Trial court abused discretion by denying defendant’s motion for post-trial interview of juror who misrepresented that she had been involved in no past civil or criminal litigation although post-trial investigation revealed that she had been involved in extensive civil and criminal litigation — Trial court is to reconsider defendant’s motion for new trial following juror interview

42
Fla. L. Weekly D858b
Top of Form

Torts
— Premises liability — Slip and fall — Juror interview — Trial court abused
discretion by denying defendant’s motion for post-trial interview of juror who
misrepresented that she had been involved in no past civil or criminal
litigation although post-trial investigation revealed that she had been
involved in extensive civil and criminal litigation — Trial court is to
reconsider defendant’s motion for new trial following juror interview

WESTGATE
PALACE, LLC, Appellant, v. KRISTEN PARR and THOMAS PARR, Appellees. 5th
District. Case No. 5D16-1503. Opinion filed April 13, 2017. Appeal from the
Circuit Court for Orange County, Janet C. Thorpe, Judge. Counsel: Art C. Young,
Isaac R. Ruiz-Carus and Meredith M. Stephens, of Rissman, Barrett, Hurt,
Donahue, McLain & Mangan, P.A., Orlando, for Appellant. Sage Morris-Webster
and Ronald S. Webster, of Webster Law Group, Orlando, for Appellees.

(WALLIS,
J.) Westgate Palace, LLC (“Westgate”), appeals the final judgment rendered in
favor of Kristen Parr and Thomas Parr following a jury trial. After trial, the
trial court denied Westgate’s motions seeking a juror interview and a new
trial. We reverse the trial court’s order denying Westgate’s motion to
interview a juror. We also reverse the trial court’s order denying Westgate’s
motion for a new trial with instructions to reconsider that motion following
the juror interview.

In
June 2012, Mrs. Parr traveled to Orlando to attend a convention at the Orange
County Convention Center. Mrs. Parr was staying at the Westgate Palace Hotel, a
facility owned and operated by Westgate. At approximately 7:30 p.m. on June 6,
Mrs. Parr left her hotel room and was walking through the lobby towards the
main exit when she slipped in a puddle of water and fell. X-rays later showed
that Mrs. Parr fractured her kneecap in the fall. Mrs. Parr underwent surgery,
which required the placement of several screws in her knee. The Parrs then
filed a complaint against Westgate for negligence and loss of consortium.

The
case proceeded to a jury trial on February 29, 2016. Before participating in
the voir dire process, each member of the venire filled out a juror
questionnaire. When voir dire began, the venire-members took an oath to tell
the truth, and the trial court gave each potential juror the option of
providing their answers privately. The questionnaire included the following two
questions that are relevant to this appeal:

Have you or any member of
your immediate family been party to any law suit?

Have you or any member of
your family been accused, a complainant, or a witness in a criminal case?

Juror
121 answered “no” to both questions. During questioning, some of the potential
jurors, but not Juror 121, were asked if they had been involved in any prior
lawsuits. Juror 121 was also the only juror who admitted to being excited about
receiving the jury duty notice, stating:

[Juror 121]: First, thing, I
only see this on TV and it’s great to serve, you know, just to be a servant and
do something to help.

[The Parrs’ Counsel]: That’s
wonderful.

[Juror 121]: Whatever you
need, you know, it’s just a part that I just always wanted to be a part of,
yeah.

Juror
121 also acknowledged that she had lived in Dallas, Texas, and had resided in
Orange County, Florida for only the last five years. Ultimately, the parties
picked a six-member jury, which included Juror 121.

The
jury found Westgate forty-five percent negligent and Mrs. Parr fifty-five
percent negligent. The jury awarded Mrs. Parr a total of $396,725.62, including
$10,000 for past lost earnings, $61,726.62 in past medical expenses, $125,000
in future medical expenses, $150,000 for past pain and suffering, and $50,000
for future pain and suffering. The jury awarded Mr. Parr $7500, including $3750
in past loss of consortium and $3750 in future loss of consortium.

After
trial, Westgate filed motions to interview Juror 121 and for a new trial. In
its motion to interview Juror 121, Westgate noted that the jurors swore an oath
to fill out the juror questionnaire and answer voir dire questions truthfully,
and that Juror 121 did not raise her hand during voir dire when the panel was
asked whether they had been involved in any civil or criminal cases. Westgate
alleged that its post-trial investigation revealed an extensive legal history
for Juror 121, including twenty felony and misdemeanor charges for various drug
possession and theft offenses dating from 1977 through 1995, a 1999 civil
traffic infraction, and a 2004 Kansas tax warrant. Westgate alleged that Juror
121 had been convicted on seven criminal charges, four of which resulted in her
incarceration. Westgate also alleged that Juror 121 filed for bankruptcy in
2005 and was involved in a divorce case in Kansas in 2004.1 Finally, Westgate claimed that Juror
121 dishonestly stated in her questionnaire that she had lived in Orange
County, Florida for only five years when she had actually resided there from
1977 through 1999, before returning in 2005 and filing for bankruptcy. Westgate
argued that Juror 121’s concealment of her past criminal and civil litigation
prevented it from making an informed decision as to whether to exercise a
peremptory challenge. Westgate also claimed that Juror 121 neglected to correct
her questionnaire despite being given the opportunity. Attempting to link Juror
121’s alleged concealment with the merits of its case, Westgate noted that a
major theme of its case concerned alleged false representations by Mrs. Parr
about her cellphone usage at the time of the slip and fall incident. The trial
court denied Westgate’s motions to interview Juror 121 and for a new trial.

We
review orders rendered by the trial court disposing of motions for juror
interviews for an abuse of discretion. Barrios v. Locastro, 166 So. 3d
863, 865 (Fla. 4th DCA 2015). Florida Rule of Civil Procedure 1.431(h) permits
a party to request an interview with a juror within ten days after the verdict
if the party believes there are grounds for a legal challenge to the verdict. A
trial court should grant a juror interview only when the motion contains sworn
factual allegations that, if proven, would warrant a new trial. Egitto v.
Wittman,
980 So. 2d 1238, 1240 (Fla. 4th DCA 2008). “While trial courts
should be hesitant to grant motions for post-trial juror interviews, ‘[w]here
there are reasonable grounds to believe concealment of a material fact has
taken place, a party is entitled to conduct a jury interview.’ ” Barrios,
166 So. 3d at 865 (alteration in original) (quoting Sterling v. Feldbaum,
980 So. 2d 596, 598 (Fla. 4th DCA 2008)).

Trial
courts apply a three-part test when ruling on a motion to interview a juror:

First, the complaining party
must establish that the information is relevant and material to jury service in
the case. Second, that the juror concealed the information during questioning.
Lastly, that the failure to disclose the information was not attributable to
the complaining party’s lack of diligence.

De
La Rosa v. Zequeira,
659 So. 2d 239, 241 (Fla. 1995)
(citing Skiles v. Ryder Truck Lines, Inc., 267 So. 2d 379, 380 (Fla. 2d
DCA 1972)). Materiality means that “the omission of the information prevented
counsel from making an informed judgment — which would in all likelihood have
resulted in a peremptory challenge.” Barrios, 166 So. 3d at 865 (quoting
Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013)). Although all
litigation history is relevant, materiality and remoteness depend on the facts
of each case. Egitto, 980 So. 2d at 1240; Leavitt v. Krogen, 752
So. 2d 730, 733 (Fla. 3d DCA 2000).

We
find that the trial court abused its discretion in denying Westgate’s motion to
interview Juror 121. Westgate’s post-trial research allegedly revealed twenty
criminal cases against Juror 121; seven resulted in convictions, of which four
resulted in a period of her incarceration. Juror 121’s alleged concealment of
her past, combined with her enthusiasm to serve as a juror, deprived Westgate
of the opportunity to make an informed judgment about its use of a peremptory
challenge. See De La Rosa, 659 So. 2d at 241; Leavitt, 752 So. 2d
at 732-33. Furthermore, unlike Egitto, where the party questioned the
juror on some, but not all, of the juror’s litigation history, Westgate had no
indication that Juror 121 had any litigation history, and thus it had no reason
to question her regarding her attitude towards the courts or her concept of
justice. Cf. 980 So. 2d at 1240.

We
reject the Parrs’ argument that Westgate did not exercise diligence during voir
dire because its questions were too imprecise to elicit a response from Juror
121. We find that this argument lacks merit because Juror 121’s questionnaire
and her responses during jury selection gave Westgate’s attorney no reason to
delve further into her litigation or criminal history. See Taylor v. Magana,
911 So. 2d 1263, 1270 (Fla. 4th DCA 2005). The trial court informed the
potential jurors that they should answer questions posed to others if those
questions were relevant to them as well. Westgate’s counsel had nothing to work
with regarding past litigation or criminal history for Juror 121.

We
reverse the trial court’s order denying Westgate’s motion to interview Juror
121 and remand with instructions to conduct the requested interview.
Thereafter, the trial court must apply the De La Rosa factors to
determine whether Westgate is entitled to a new trial. Because the trial court
may ultimately award a new trial in this case, we find it premature to rule on
the remaining issues. Accordingly, we stress that our reversal is without
prejudice to Westgate re-raising those issues in the event that the trial court
does not award Westgate a new trial.

REVERSED
and REMANDED with Instructions. (TORPY and LAMBERT, JJ., concur.)

__________________

1Juror
121 disclosed her divorce on the juror questionnaire.

* *
*

Filed Under: Articles

Primary Sidebar

Blog Archives

  • February 2021
  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982