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Florida Fifth DCA reverses trial court's order granting new trial, basing decision on plaintiff counsel's failure to timely object to defense counsel's improper but curable closing argument

On April 13, 2018, in Walt Disney Parks v. Grimes, No. 5D16-3555, the Florida Fifth DCA reversed a trial court order granting a new trial to the plaintiff in a negligence case against Walt Disney Parks. The trial court had granted the new trial based on improper remarks made by defense counsel in closing argument. However, the remarks had not been objected to by plaintiff’s counsel during the closing argument so there had been no request for a curative instruction. Quoting from Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1031 (Fla. 2000), the Fifth DCA opined that before a complaining party may receive a new trial based on [an] unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” The substance of the alleged improper statement is not discussed in the decision, but the Fifth DCA concluded that “the impropriety in Disney’s closing arguments could have been cured by a timely objection, after which the trial court could have sustained the objection and issued a curative instruction to the jury."

This case reflects the difficult position that trial counsel is often placed in when dealing with improper arguments by opposing counsel. A contemporaneous objection risks drawing the jury’s attention more acutely to the improper statement, while a failure to object subjects the litigant to usually fruitless fundamental error analysis. Although it is impossible to tell from this decision, the comment may have been so egregious that plaintiff’s counsel reasonably believed that silence was the best option and that any subsequent motion would survive even a fundamental error analysis, as appears to have been true before the trial court.