744 So. 2d 477 | Fla. Dist. Ct. App. | 1999
Lead Opinion
The Florida Department of Transportation (“DOT”) appeals an adverse final judgment entered pursuant to a jury verdict in this personal injury action. We affirm.
The appellee, Angelo Juliano, a former correctional officer, employed by the Florida Department of Corrections (“DOC”)
On remand, the DOT filed a second motion for summary judgment based again on the workers’ compensation exemption. This time, the DOT argued that the Florida Supreme Court’s holding in Holmes County School Board v. Duffell, 651 So.2d 1176 (Fla.1995), precluded an employee from maintaining a negligence suit against his employer, due to the negligent acts of a supervisor, in the absence of allegations and proof of the supervisor’s criminal negligence. The trial court denied and rejected this second motion as a mere relit-igation of the first motion for summary judgment. The case then proceeded to trial with a verdict being ultimately entered in Juliano’s favor. This appeal followed.
For its first issue on appeal, the DOT asserts that the denial of its second motion for summary judgment on the workers’ compensation exemption was error. We conclude, however, that the doctrine of res judicata precluded the DOT from raising or reraising any aspect of its workers’ compensation defense on remand after the first appeal of this cause. See Thomas v. Perkins, 723 So.2d 293, 294 (Fla. 3d DCA 1998) (under the doctrine of res judicata, appellant is precluded from raising any issues which were or should have been raised on first appeal).
For its second argument, the DOT contends that it was unfairly prejudiced by a special jury instruction concerning the distraction rule because the issue of Juliano’s distraction at the time of his accident was not framed by the pleadings and evidence. We find no merit to this argument. Given Juliano’s deposition and trial testimony that his attention and eye contact was focused on the inmates and not on the bump in the floor at the time of the accident, the distraction issue, at the very least, was tried by implied consent. See C.A. Davis, Inc. v. City of Miami, 400 So.2d 536, 540 (Fla. 3d DCA 1981) (when plaintiff failed to object to evidence not included in counterclaim issue was tried by implied consent); see also Department of Rev. of the State of Florida v. Vanjaria
The DOT next asserts that it was unfairly prejudiced by a jury instruction on the aggravation of a preexisting condition when there was no evidence that any preexisting condition existed. See Winn-Dixie Stores, Inc. v. Nall, 302 So.2d 781-82 (Fla. 3d DCA 1974). Although Juliano did not make a claim for the aggravation of a preexisting condition, the trial court decided to give this instruction after the DOT stated that it was going to argue that Juliano had had problems with his leg prior to this accident. Having elected to argue the issue of the aggravation of a preexisting condition, DOT cannot now complain about the giving of a jury instruction regarding this issue. See e.g., Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572, 575 (Fla. 3d DCA 1979) (stating that “[o]ne who has contributed to alleged error will not be heard to complain on appeal.”); Arsenault v. Thomas, 104 So.2d 120, 122 (Fla. 3d DCA 1958) (providing that “[wjhere a litigant requests and receives a favorable ruling, he cannot later on appeal be heard to complain of the actions of the trial judge in acceding to his requests.”). Although we find the giving of this instruction to be erroneous in the absence of any evidence in support of a preexisting injury, we conclude that any such error was harmless in this case inasmuch as the instruction did not relate materially to the total amount of the damages awarded by the jury. Nall, 302 So.2d at 782; see also Metropolitan Dade County v. Brill, 414 So.2d 626 (Fla. 3d DCA 1982).
Finally, the DOT argues that the trial court abused its discretion when it permitted evidence of subsequent remedial measures to the floor at the weigh station in violation of section 90.407, Florida Statutes (1991). We disagree. Given the DOT’s evidence and argument throughout this litigation that it was not feasible to repair the floor of the weigh station, the trial court properly permitted evidence of repairs made to the weigh station after Juliano’s accident for impeachment and/or rebuttal purposes. See Morowitz v. Vistaview Apartments, Ltd., 613 So.2d 493, 495 (Fla. 3d DCA 1993); Currie v. Palm Beach County, 578 So.2d 760, 763 (Fla. 4th DCA 1991).
Thus, finding no reversible error, we affirm the judgment under review.
Affirmed.
LEVY, J., concurs.
. As a result of his injuries, Juliano was termi-naled as a correctional officer.
Concurrence Opinion
(specially concurring).
On the issue of preexisting condition, I do not believe there was any error. The Department of Transportation (“DOT”) said during the charge conference that in closing argument it would contend that some of plaintiffs claims were attributable to plaintiffs preexisting physical condition. DOT based its argument that plaintiff had a preexisting condition on medical evidence at trial. The court correctly ruled that plaintiff was entitled to have the jury
I concur with the rest of the opinion.
