Carnival Corp. v. Jimenez
112 So. 3d 513
Fla. Dist. Ct. App.2013Background
- Jimenez sued Carnival for damages from a shipboard slip and fall; jury awarded $3,750 for past medical expenses and $3,750 for past pain and suffering.
- Trial court set aside the verdict and granted a new trial based on defense counsel’s misconduct and improper argument.
- Incident occurred May 17, 2009 on a Carnival cruise when Jimenez slipped on an oily substance near a buffet, proximately causing knee and hip injuries; she was treated on board and transported to Tampa General Hospital.
- Dr. John Smith treated Jimenez; he later performed left knee surgeries; Carnival argued right knee/hip issues resolved and degeneration plus gardening incident explained left knee problems.
- Jimenez lacked medical insurance; many providers treated under letters of protection; defense highlighted the LO P issue and questioned witness credibility; defenses cited neighborly relationships between Dr. Smith and plaintiff’s counsel.
- Jury awarded $8,750 for past pain and suffering and $3,750 for past medical expenses; no awards for wages, future damages, or future pain and suffering.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether closing arguments and witness questioning were improper | Jimenez argues defense misconduct biased the trial. | Carnival contends arguments were proper attacks on credibility. | Some remarks crossed line; however, issue not preserved to require new trial under Murphy. |
| Whether unobjected conduct constitutes fundamental error justifying a new trial | New trial warranted due to prejudicial, inflammatory comments. | Unobjected remarks do not compel a new trial unless fundamental error. | Murphy four-part test applied; not met because errors were not incurable or harmful as to mandate a new trial. |
| Application of Murphy four-part test to unpreserved misconduct | Comments were improper, prejudicial, incurable. | Impact limited; curative instructions could have cured; isolated instance. | Conduct not shown to be incurable; four-part test not satisfied. |
| Whether the trial court abused discretion in granting a new trial | New trial was appropriate given prejudice from defense remarks. | No abuse; remedy improper due to insufficient harm. | No abuse; order for new trial reversed and final judgment reinstated. |
Key Cases Cited
- Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000) (four-part test for unpreserved closing argument)
- Moreta, 957 So.2d 1242 (Fla.2d DCA 2007) ( Murphy framework applied to preserved/unpreserved errors)
- Companioni v. City of Tampa, 51 So.3d 452 (Fla.2010) (Murphy four-part test; fundamental error standard)
- Platz v. Auto Recycling & Repair, Inc., 795 So.2d 1025 (Fla.2d DCA 2001) (abuse of discretion in new trial rulings)
- Venning v. Roe, 616 So.2d 604 (Fla.2d DCA 1993) (improper comments—perjury and fraud )
- Lewis v. State, 780 So.2d 125 (Fla.3d DCA 2001) (scripted testimony comments improper)
- Owens Corning Fiberglas Corp. v. Morse, 653 So.2d 409 (Fla.3d DCA 1995) (propriety of asserting witness manipulation)
- Thompson v. Hodson, 825 So.2d 941 (Fla.1st DCA 2002) (curative instruction effectiveness in closing arguments)
- Aarmada Prot. Sys. 2000, Inc. v. Yandell, 73 So.3d 893 (Fla.4th DCA 2011) (incurability standard in Murphy context)
- USAA Cas. Ins. Co. v. Howell, 901 So.2d 876 (Fla.4th DCA 2005) (harmful impact of improper comments)
- Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla.1999) ( admissibility of bias evidence)
- Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200 (Fla.4th DCA 2012) (improper arguments regarding credibility)
- Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006) (closing argument misconduct standards)