White Construction Co. v. Dupont

We have before us a decision of the First District Court of Appeal, White Construction Co. v. Dupont, 430 So.2d 915 (Fla.1st DCA 1983), which allegedly conflicts with prior decisions of this Court and of the district courts of appeal on the same point of law. We find conflict with City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955), thus we have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

This ease involves an accident at a mining site. On September 13, 1977, the respondent, Nathaniel Dupont, an independent truck owner and operator, arrived at the Cabbage Grove mine owned by petitioner, Limerock Industries, Inc., to pick up a load of limerock. While he was waiting for his turn to load, Dupont left his four axle tractor-trailer with the motor running, walked between the cab and the trailer, and began to do some minor repair work to the truck. A Limerock employee, driving a CAT 988 loader, weighing some forty tons and standing approximately 22 feet high, began to back the loader around a large pile of limerock toward Dupont’s trailer. As the loader, proceeding at top speed, approached Dupont’s trailer, the driver looked back, and, realizing he was going to hit the trailer, shouted a warning to Du-pont. The loader struck the back end of the trailer and the impact apparently caused its gear to pop into forward position, forcing the trailer to advance about one and a half times its length, and in the process to roll over Dupont, who suffered permanent disability as a result of his injuries.

Dupont sued Limerock Industries, Inc., the corporation that owned the mine, and White Construction Co., the company that owned the loader, which was, at that time, leased to Limerock, seeking compensatory and punitive damages for his personal injuries. Dupont’s wife, Janey Dupont, joined in the action, seeking damages for loss of consortium. The jury returned a verdict for the Duponts, awarding the following amounts of damages: $1,025,000 in compensatory damages to Nathaniel Dupont, $1,025,000 to Janey Dupont for loss of consortium, $2,000,000 in punitive damages against Limerock, and $1,500,000 in punitive damages against White. The trial court granted petitioner, Limerock’s, motion for new trial on the issue of punitive damages, subject to an alternate order of remittitur reducing the award from $2,000,-000 to $1,000,000. Petitioners initially accepted the order of remittitur, but then sought to challenge it by cross-appeal. The district court dismissed the cross-appeal, thereby affirming the order of remittitur, in a prior decision not involved in this appeal. White Construction Co. v. Dupont, 423 So.2d 549 (Fla. 1st DCA 1982).

Petitioners raised the following points on appeal to the First District Court of Appeal in the case which we have for review: that the trial court erred 1) in entering judgment for punitive damages; 2) in not dismissing the complaint for improper venue; 3) in admitting evidence of subsequent repairs to the loader; 4) in denying a motion for new trial on the ground that inflammatory remarks by respondents’ counsel during closing arguments improperly influenced the jury and resulted in an excessive and judicially shocking award; and 5) in not reducing the award of $1,025,000 to Janey Dupont for loss of consortium as excessive. The district court affirmed all aspects of the judgment without discussion except for the $1,025,000 award for loss of consortium to Janey Dupont, which they reversed and remanded for a new trial. White Construction Co., 430 So.2d 915.

The evidence in this case showed that the loader’s brakes had not been working for some time, and that the petitioners were aware of this fact. Although this evidence would be sufficient to show that the petitioners were negligent, it is not sufficient, as a matter of law, to submit the issue of punitive damages to the jury. This Court has previously stated the degree of negligence necessary to support an award of punitive damages in a civil case in Carraway v. Revell, 116 So.2d 16 (Fla.1959).

Carraway was an action for compensatory damages arising under Florida’s automobile guest statute. The imposition of punitive damages was not at issue. Consequently, the language there concerning punitive damages could appropriately be termed dicta. However, it has been followed by the district courts. See, e.g., Martin (Government Employees Insurance Co.) v. Young, 443 So.2d 293 (Fla. 3d DCA 1983); Ellis v. Golconda Corp., 352 So.2d 1221 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 714 (Fla.1978); Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla. 2d DCA 1968).

In Carraway we made it clear that something more than gross negligence is needed to justify the imposition of punitive damages:

[Gjross negligence ... is that kind or degree of negligence which lies in the area between ordinary negligence and wilful and wanton misconduct sufficient to support a judgment for exemplary or punitive damages....

116 So.2d at 22. This Court agreed with the district court “ ‘that the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages.’ ” Id. at 20. We then stated:

There is a real affinity between the character (or kind or degree) of negligence necessary to recover punitive damages or to sustain or warrant a conviction of manslaughter. Both have, as a basic purpose, the punishment of the offender. The offender in a manslaughter action may be deprived of his liberty or property by the State while the offender in an action for that kind of negligence justifying the imposition of punitive damages is deprived of his property—not as compensation to the injured party but as punishment—ergo, both are punishment and partake of public wrongs, to a greater or less degree.

Id. (footnotes omitted).

In a footnote, we set forth the standard to be met to justify the imposition of punitive damages upon a defendant:

The character of negligence necessary to sustain an award of punitive damages must be of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them”.

Id. at 20 n. 12 (citations omitted).

Therefore, we approve and reaffirm the language set forth in Carraway and adopt it as the proper standard to be applied when imposing punitive damages upon a defendant. Thus, applying the Carraway standard to the facts of the instant case, as we stated above, under no view of the evidence presented here would it be proper to impose punitive damages upon petitioners, White and Limerock. This holding renders it unnecessary to discuss petitioners’ claim that the trial court erred in allowing respondents’ safety expert to testify that petitioners were “knowingly exposing people to injury or death”, since the trial court ruled that this testimony was allowed because punitive damages were at issue in the case. Accordingly, we quash the decision of the First District Court of Appeal upholding the award of punitive damages in this case.

We also agree with the petitioner that the trial court erred in admitting evidence of subsequent repairs to the loader. This case was tried by stipulation under the common law rules of evidence rather than the Florida Evidence Code; however, the result is the same under either. Until the adoption of the Florida Evidence Code in 1976, Florida followed the widely recognized rule that evidence of repairs made after an accident are not admissible to prove negligence or culpability on the part of the defendant. Seaboard Air Line Railway v. Parks, 89 Fla. 405, 104 So. 587 (1925). Section 90.407, Florida Statutes (1981) codifies this long-standing common law rule:

Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event.

The rule is a sound one; otherwise, if such evidence could be admitted against a defendant he would be penalized for an attempt to prevent injury to others. Seaboard, 89 Fla. at 411, 104 So. at 589 (citation omitted).

In the present case the trial judge permitted testimony, over objection, from the operator of the loader that the day after the accident the loader was taken away to be repaired and that, when it was brought back the next day, its brakes were working “a lot better than [they] had at the beginning.” The trial judge admitted this evidence because defense counsel would not stipulate that the loader’s brakes were malfunctioning on the day of the accident. Respondents argue that this evidence was properly admitted as an exception to the rule for the purpose of impeachment or rebuttal. The fallacy in this argument lies in the fact that no evidence was offered by petitioners concerning the operation of the brakes on the day of the accident that respondents could properly impeach or rebut. Therefore, were we to find that this evidence was properly admitted, we would be “undermining the rule which was so long ago established.” City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955). Nonetheless, even though we find the subsequent repair evidence was improperly admitted, it was harmless error and does not warrant a new trial. Section 59.041, Florida Statutes (1981), prohibits ordering a new trial unless the improperly admitted evidence “has resulted in a miscarriage of justice.” There was enough independent evidence of defendants’ negligence admitted that made this testimony merely cumulative.

One additional point raised by petitioners merits discussion. Petitioners argue that some of the comments made by respondent’s counsel during closing argument were improper and prejudicial. These comments concerned the differences in race and economic standing between the two parties, among other things. Some latitude is permitted when arguing the amount of “smart money” to punish defendants. See, e.g., Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Tate v. Gray, 292 So.2d 618 (Fla. 2d DCA 1974); Dixie-Bell Oil Co. v. Gold, 275 So.2d 19 (Fla. 3d DCA 1973). However, since in today’s decision we hold that the issue of punitive damages was improperly submitted to the jury, it was error for the trial judge to allow these comments. In any event, we hold that these comments do not amount to fundamental error, and therefore, they cannot form the basis for a new trial on appeal, since there was no timely and proper objection made by defense counsel. Tyus v. Apalachicola Northern Railroad, 130 So.2d 580, 587 (Fla.1961); Bishop v. Watson, 367 So.2d 1073 (Fla. 3d DCA 1979).

Accordingly, we quash that portion of the district court’s decision upholding the award of punitive damages and we affirm the remainder of the decision. This cause is remanded to the First District Court of Appeal with instructions to further remand same to the trial court for a new trial on the issue only of Mrs. Dupont’s damages for loss of consortium.

It is so ordered.

BOYD, C.J., and OVERTON and MCDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion.

EHRLICH, J., dissents with an opinion in which SHAW, J., concurs.