96 So. 3d 917
Fla. Dist. Ct. App.2012Background
- Taylor, J. affirms Engle-based findings to prove conduct elements and duty/breach; trial court precluded contesting certain Engle issues; Jan Grossman added to verdict form as liable party; jury awards and apportionment allocate damages among Laura, Jan, and RJR; Fabre defendant inclusion concerns remand for damages and liability; this leads to reversal on cross-appeal and remand for new trial on all Phase II issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Jan properly placed on the verdict form as a party? | Estate argues Jan liable; Jan breached duty to Laura. | RJR argues Jan created risk; Jan liable. | Reversed; Jan improperly included. |
| Did trial court admit lay testimony on Laura's addiction? | Estate supports addiction finding with lay and expert testimony. | RJR contends improper lay testimony. | Affirmed admission of lay testimony. |
| Remedy for improper Fabre defendant inclusion? | New trial on damages and apportionment. | No new trial needed if error cured. | Remand for an entirely new trial on all Phase II issues. |
| Did Jan’s conduct create a legal duty to prevent Laura from smoking? | Estate contends duty breached by Jan’s actions. | No duty to control spouse or prevent smoking. | No duty; Jan not liable. |
| Does evidence of Jan’s conduct prejudicially affect damages? | Inclusion prejudiced jury against Jan. | Evidence admissible to assess fault. | Damages and liability to be retried; new trial ordered. |
Key Cases Cited
- Fabre v. Marin, 623 So.2d 1182 (Fla.1993) (recognizes Fabre defense issues in verdict form decisions (receded on other grounds))
- Probkevitz v. Velda Farms, LLC., 22 So.3d 609 (Fla.3d DCA 2009) (improper inclusion of estate representative on verdict form requires new trial)
- Abbott v. Dorleans, 41 So.3d 984 (Fla.4th DCA 2010) (new trial may be required where Fabre defendant improperly included)