202 So. 3d 872
Fla. Dist. Ct. App.2016Background
- Plaintiff Angel Luis Lastre-Torres, a Spanish‑speaking, Cuban‑born worker employed by a cleaning contractor that serviced a Burger King restaurant, suffered an eye injury when a degreaser dripped into his eye while cleaning a fryer hood.
- Plaintiff testified (through an interpreter) that he had requested a face mask several times but none was provided; Burger King witnesses testified weekly inspections and safety equipment, including the mask, were present.
- A jury awarded $931,000 total: $29,000 past medical, $52,000 future medical, $50,000 past pain and suffering, and $800,000 future pain and suffering; jury apportioned 90% liability to Burger King, yielding a judgment of $837,900.
- Burger King moved for remittitur and a new trial and appealed after those motions were denied. Plaintiff was also awarded attorney’s fees and costs under an offer of judgment.
- The court concluded the past medical award was unsupported by undisputed evidence ($4,026.35 shown) and the future medical award should be reduced to $24,024 (expert’s prosthetic/maintenance calculation). Court affirmed the remainder of the judgment.
- A concurring opinion criticized plaintiff’s counsel’s closing argument as racially/ethnically inflammatory and improper but noted opposing counsel failed to object; therefore reversal for fundamental error was not warranted though the conduct may be sanctionable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability / credibility of witnesses | Lastre testified he asked for a mask and was not provided one; jury credited him | Burger King maintained inspections showed safety equipment present; witnesses denied mask absence | Jury verdict on liability affirmed — appellate court will not reweigh credibility |
| Past medical damages amount | $29,000 awarded by jury for past medical | Undisputed medical records show $4,026.35 in past medical expenses | Remitted to $4,026.35 (award excessive and unsupported) |
| Future medical damages amount | Jury awarded $52,000 for future medical expenses | Plaintiff’s expert tied future costs to prosthetic eye: $2,000 + $600/year for ~40 years = $24,024 | Remitted to $24,024 (award excessive relative to expert evidence) |
| Improper/ inflammatory closing arguments | Counsel appealed to sympathy for "first‑generation" immigrants and made ethnic/racially charged comparisons; suggested corporate callousness | Burger King argued closing was inflammatory and prejudicial and sought new trial; failed to object at trial so urged fundamental error on appeal | Court: arguments improper but unobjected‑to; Burger King failed to show incurable fundamental error — no new trial; concurrence warns counsel may face bar discipline |
Key Cases Cited
- Teichner & Mella, P.A. v. Butler By and Through Fulton, 600 So.2d 507 (Fla. 3d DCA 1992) (appellate courts defer to jury credibility determinations)
- Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000) (closing arguments that appeal to racial, ethnic, or religious prejudices can require new trial; fundamental error standard discussed)
- City of Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011) (counsel cautioned against inflammatory, prejudicial argument)
- Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA 2010) (partisan zeal allowed only insofar as confined to evidence)
- SDG Dadeland Assoc., Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008) (improper for attorney to offer personal opinion regarding evidence)
- Muhammad v. Toys “R” Us, Inc., 668 So.2d 254 (Fla. 1st DCA 1996) (anecdotal, irrelevant rhetoric in closing is improper)
- E.S.S. Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA 1980) (arguments solely to evoke sympathy are improper)
- Aircraft Serv. Int’l, Inc. v. Jackson, 768 So.2d 1094 (Fla. 3d DCA 1995) (awards exceeding a definite, ascertainable amount are readily vacated and remanded)
Affirmed in part, reversed in part (remittitur of past and future medical awards) and remanded.