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Florida First DCA rules that motor vehicle negligence plaintiff waived argument that evidence at trial was insufficient to apportion comparative negligence by failing to make a timely motion for directed verdict at trial

On April 30, 2021, in Strickland v. State Farm, No. 1D20-70, the Florida First DCA affirmed a trial court ruling denying the motion by the plaintiff for summary judgment on the issues of liability and comparative negligence in a motor vehicle negligence case. The First DCA ruled that the issue became moot once it proceeded to a jury trial. At trial, the plaintiff did not move for a directed verdict on the issue of liability or oppose the submission of the comparative negligence issue to the jury. The First DCA quoted from its previous decision in Lacombe v. Deutsche Bank Nat’l Tr. Co., 149 So. 3d 152 (Fla. 1st DCA 2014): “[a[]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Stated differently, where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless. The plaintiffs also alternatively argued that the evidence at trial was insufficient to apportion comparative negligence to the plaintiff, but the First DCA ruled that this issue was not preserved because a directed verdict motion was not made, thereby waiving the appellate issue.

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