Opinion
Case No. 4D00-1072.
Opinion filed July 25, 2001.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Estella Moriarty, Judge; L.T. Case No. 98-2122 05.
Dan Cytryn of Law Offices Dan Cytryn, P.A., Tamarac, for appellant.
Richard A. Sherman and Rosemary B. Wilder of Law Offices of Richard A. Sherman, P.A., and R. David Ravine of Law Offices of Robert F. Tacher, Fort Lauderdale, for appellee.
In her appeal from a judgment in favor of appellee condominium association in a premises liability case, appellant contends that the trial court erred in bifurcating the issues and trying only liability to the jury first. She also alleges error in the trial court's refusal to permit her to offer evidence of subsequent repairs, refusal to permit appellant's expert to testify regarding procedures that the condominium association should have implemented with respect to the premises, and failure to give a particular jury instruction. We hold that the trial court did not abuse its discretion in granting the bifurcation. As to the remaining trial issues, the evidentiary errors were not preserved, nor were they error in any event, and the requested jury instruction was not supported by the pleadings or evidence raising the issue. We therefore affirm.
Appellant, Mindy Roseman, claimed to have suffered injuries when the front door at appellee's condominium complex closed quickly, striking her on the back. Specifically, she alleged that the door was not properly maintained and that appellee failed to warn her of this dangerous condition. Prior to trial, the court granted appellee's request to bifurcate the liability portion from the damages portion of the case. The court determined that the issue the jury would determine is "was there negligence on the part of Town Square Association which was a legal cause of the door striking Mindy Roseman."
At a pretrial hearing, Roseman proffered the testimony of an expert in condominium management. He was prepared to render opinions on whether appellee should have placed written notice on the door stating that the door should not be adjusted and whether appellee should have made sure the door was closing at a safe pace. The court determined that these were not matters of expert opinion but were matters within the common knowledge of the jury. However, Roseman was free to argue such theories to the jury.
During trial, Roseman called several witnesses who either visited or lived at the condominium complex. Their testimony established that the door was heavy and "pretty much slammed closed." Roseman also called a door expert who conducted several tests on the closing speed of the door and opined that the door closing mechanism was set at a speed that caused it to close too quickly. In addition, Roseman called Roger Tuttle, a locksmith who performed work on the door. In a proffer outside the presence of the jury, Tuttle stated that he performed adjustments on the "door closer" on several occasions after the incident in question. He also stated that he suspected that condominium residents were adjusting the door, so he put a sticker over the screws. When he returned for additional work, he noticed that the stickers had been removed or penetrated. One of the members of the condominium's board of directors told Tuttle that he had experienced continuous problems with the door.
After the proffer, the trial court ruled that Tuttle could not testify that he suspected that residents were adjusting the door screws because Tuttle could not testify that he saw them adjusted before the accident. Tuttle was also not permitted to testify about his own adjustments of the door after the accident. However, he was allowed to testify as to the director's statement about the door problems. Later, appellee read portions of the director's deposition to the jury which indicated that the director was not aware of whether the door closer had been replaced. Roseman contended that appellee had opened the door to evidence of subsequent repairs. The trial court disagreed, although the court told Roseman that she could use such evidence to impeach the director's testimony that no repairs were made.
At the close of the trial, the trial court read the standard jury instruction on premises liability to the jury and refused to include Roseman's request that it instruct the jury that an issue for its determination was whether the defendant negligently created a dangerous condition. The case was submitted to the jury, which returned a verdict finding no liability on behalf of appellee.
Bifurcation
Florida Rule of Civil Procedure 1.270(b) governs the bifurcation of trials:
The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues.
Roseman makes a broad argument that bifurcation should not be permitted in personal injury cases, except in rare circumstances, and requests this court to certify this question to the supreme court as one of great public importance.
Cases involving bifurcation make two principles of law evident. First, the trial court's decision to bifurcate is subject to an abuse of discretion standard of review. See Microclimate Sales Co. v. Doherty, 731 So.2d 856, 858 (Fla. 5th DCA 1999); Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022, 1024 (Fla. 1st DCA 1998); Hardee Mfg. Co. v. Josey, 535 So.2d 655, 656 (Fla. 3d DCA 1988). Second, "bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party." Microclimate Sales Co., 731 So.2d at 858. See also Hardee Mfg. Co., 535 So.2d 655, 656 (Fla. 3d DCA 1988) (no abuse of discretion in denying motion to bifurcate liability and damages in personal injury case where "factors concerning the cause and nature of the injuries would, unavoidably, have been adduced at a separate trial on liability").
Where a court has disapproved bifurcation in a personal injury case, it has been grounded on the necessity to have evidence of injury to prove or explain some issue in the liability trial. In Scandinavian World Cruises Bahamas, Ltd. v. Barone, 573 So.2d 1036 (Fla. 3d DCA 1991), the court held that bifurcation was improper because the plaintiff was prejudiced on the issue of liability. During the liability trial, the trial court excluded evidence that the plaintiff suffered an organic brain injury as a result of the accident. This evidence "was necessary to explain certain confusing and inconsistent testimony of the plaintiff, including a glaring inconsistency as to where the plaintiff had slipped and fallen on the defendant's cruise ship." Id. at 1037.
Unlike Barone, the injuries suffered by Roseman were not intertwined with the issue of whether appellee negligently maintained the subject door. There was no dispute as to where on Roseman's body she was struck or how hard the blow was. Although she claims that evidence indicating her medical treatment shortly after the event would buttress her credibility, those facts are immaterial to the liability issues of negligent maintenance or failure to warn of a dangerous condition. There was no dispute at trial over whether the incident actually occurred. Instead, the defense's theory was that the door was not negligently maintained nor did it constitute a dangerous condition.
Roseman cites to Stecher v. Pomeroy, 253 So.2d 421 (Fla. 1971), for the proposition that absent an issue relating to insurance, the trial court should not bifurcate damages from liability. That case is not helpful because it relates to bifurcating issues of insurance from other issues at a time when insurance companies were routinely named as parties in negligence actions, and Stecher was clearly referring to severance in those cases where an insurance defendant is moving for severance. Stecher has never been cited for the proposition suggested by Roseman.
We conclude that the law is well settled that bifurcation is subject to the sound discretion of the trial court. There is no abuse of that discretion in this case. While Roseman suggests that the trial court be required to set forth factual findings supporting its order of bifurcation, rule 1.270 requires no such findings. Without a rule requiring them, we are not inclined to compel the trial court to provide written findings for its ruling.
Evidentiary Issues
With respect to the exclusion of Tuttle's proffered testimony that he suspected residents were adjusting the door themselves, the trial court excluded the evidence because he did not actually see anyone adjust the door. Section 90.604, Florida Statutes (1999), prohibits testimony by a witness who does not have personal knowledge of a matter. In this case, Tuttle did not have personal knowledge that the door was actually adjusted, let alone by whom the door was adjusted. Moreover, while Roseman contends on appeal that Tuttle's testimony was admissible to corroborate her theory that the door was continuously being adjusted before the incident occurred, she did not argue at trial that Tuttle's suspicions were relevant for this reason. Therefore, it is not preserved. See Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) ("[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.").
Secondly, Roseman argues that the evidence of Tuttle's adjustments to the door after the incident were admissible to impeach the director's testimony at trial that the door worked perfectly. While evidence of subsequent remedial repairs may be admissible for impeachment purposes, see § 90.407, Fla. Stat. (1999), the trial court told Roseman that she could use the evidence to impeach the director, and Roseman specifically declined to do so, thereby waiving any objection on this ground.
Finally, Roseman argues that Tuttle's testimony that he adjusted the door after the incident did not constitute evidence of a subsequent remedial repair because none of the adjustments would have made Roseman's injuries less likely to occur. See § 90.407, Fla. Stat. (1999); Donahue v. Albertson's, Inc., 472 So.2d 482, 484 n. 1 (Fla. 4th DCA 1985) (evidence of subsequent repairs admissible where the repair would not have made the inquiry less likely to occur). However, this too was not argued to the trial court as a reason for its admission and is not preserved on appeal.
Roseman also challenges the exclusion of the condominium maintenance expert's testimony. The trial court considered the expert's opinions to be a matter within the common knowledge of the jury. The range of subjects about which an expert witness will be allowed to testify are within the trial judge's broad discretion. See Broward County Sch. Bd. v. Cruz, 761 So.2d 388, 394 (Fla. 4th DCA), rev. granted, 779 So.2d 270 (Fla. 2000). In Smaglick v. Jersey Insurance Co. of New York, 209 So.2d 475, 476-77 (Fla. 4th DCA 1968), this court held that:
Expert opinions are admissible only when the facts to be determined are obscure and can be made clear only by the opinions of persons skilled in relation to the subject matter of the inquiry, and when facts are within the ordinary experience of the jury, conclusions therefrom will be left to them, and even experts are not permitted to give conclusions in such cases.
In this case, whether and how the condominium residents should have been warned not to adjust the door, and whether appellee should have ensured that the door close at a slower speed are issues within the common knowledge and experience of the jury. The trial court, therefore, did not abuse its discretion in precluding the condominium expert from testifying at trial.
Jury Instruction
Lastly, Roseman challenges the trial court's failure to include an instruction on negligent creation of a dangerous condition. The pleadings, however, did not allege negligent creation of the condition, nor did the facts support the giving of the instruction. There was no evidence that appellee actually created the door's dangerous condition (the quick closing speed). Roseman's theory of her case was that the door was negligently maintained and that appellee failed to provide adequate notice of the door's dangerous condition. The trial court did not err in failing to instruct the jury on an issue not pled nor on which any evidence was offered.
For the foregoing reasons we affirm the final judgment.
GROSS and HAZOURI, JJ., concur.