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D'Amario v. Ford Motor Co.11/21/2001
acturing defect.
Finally, I do not agree with the application of Hertz Corp. to these cases because that case in reality involved issues of indemnity and contribution, i.e., the difference between active and passive tortfeasors and how those issues were to be procedurally handled. There are sound policy reasons for doing this when the case involves allegations of negligence by a treating physician following an automobile accident. But that case should be limited to cases involving the issue of subsequent medical malpractice, which presents procedural hurdles when added to the accident case.
Therefore, I concur in result only with the majority's quashing of the Second District's decision in Ford Motor Co. v. D'Amario, 732 So. 2d 1143 (Fla. 2d DCA 1999). I conclude that the D'Amario case should be decided by applying this Court's long-standing precedent concerning a trial court's authority to rule on a motion for a new trial.
Specifically, the D'Amario case is governed by a straightforward application of those decisions in which this Court has recognized that a trial court's ruling on a motion for a new trial is vested in the sound, broad discretion of the trial court. See Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999) (trial court is vested with broad discretionary power to grant motion for new trial to prevent miscarriage of justice); Allstate Ins. Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla. 1998) ("The judicial determination on a motion for a new trial is a discretionary act of the trial court."); Cloud v. Fallis, 110 So 2d 669, 673 (Fla. 1959) ("When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge . . . ."). Under these precedents, an appellate court applies a reasonableness test to a trial court's ruling on such a motion, and the appellate court should not disturb the trial court's ruling absent an abuse of discretion. See Brown, 749 So. 2d at 498 (" he appellate court must employ the reasonableness test to determine whether the trial judge abused his or her discretion."); Manasse, 707 So. 2d at 1111 ("The appellate court should apply the reasonableness test to determine whether the trial judge abused his [or her] discretion . . . ."); Cloud, 110 So. 2d at 673 (" he ruling should not be disturbed in the absence of a clear showing that discretion has been abused.").
The trial court in the D'Amario case concluded when ruling on the motion for new trial that
permitting the publication of the blood alcohol content to the jury, coupled with the remarks of defense counsel in closing arguments to the effect that the "animal in the car was `alcohol,'" caused undue emphasis to be placed on alcohol as a primary cause of the injury. . . . Nothing in the evidence offered before or after the amendment changes now the conclusion that under F.S. 90.403 the Court should have excluded the remote condition of alcohol from the case. D'Amario v. Ford Motor Company, No. 93-2290-21-CI, order at 8-9 (Fla. 6th Cir. Ct. order filed April 30, 1997).
Clearly, it cannot be concluded that no reasonable trial court would have made that decision. I would apply Brown, Manasse, and Cloud, which appear to me to compel the conclusion that the district court's decision must be quashed.
Moreover, I find that the trial court addressed this issue correctly in ruling on the motion for rehearing. The trial court recognized that it had discretion under section 90.403, Florida Statutes (1997), in respect to the evidence presented to the jury. The trial court's ruling does not mean that comparative negligence was not a proper issue for the jury's consideration. Rather, this ruling simply recognizes that the
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