Opinion
No. 90-1843.
September 18, 1991.
Appeal from the Circuit Court for Indian River County; Dwight L. Geiger, Judge.
Robert V. Parenti, and Donald N. Watson, Law Offices of Gary, Williams, Parenti, Stuart, for appellant.
Richard V. Neill, Jr., Neill, Griffin, Jeffries Lloyd, Chartered, Fort Pierce, for appellee.
AFFIRMED.
GLICKSTEIN, C.J., and STREITFELD, JEFFREY E., Associate Judge, concur.
FARMER, J., concurs specially with opinion.
I agree with my colleagues that there is no error shown in the failure to instruct the jury on the duty owed to appellant's decedent. Although there was some reference in voir dire and opening statement by defense counsel as to whether the hospital owed a duty of care to its employees and their guests at the picnic, a review of the trial record shows unequivocally that the defendant conceded that it owed a duty of reasonable care. The duty issue was not the stage on which this trial was fought.
I also agree that there was no error shown in the trial judge's denial of a new trial on the basis that the verdict was against the manifest weight of the evidence. Trial judges have broad discretion on such new trial motions, and district judges may not interfere with their decision merely because they would have granted the motion. Baptist Memorial Hospital Inc. v. Bell, 384 So.2d 145 (Fla. 1980); and Smith v. Brown, 525 So.2d 868 (Fla. 1988).
I should have been disposed to reverse for a new trial on the jury selection issue, but I see no way around our decision in Dobek v. Ans, 560 So.2d 328 (Fla. 4th DCA 1990). It is absolutely critical to ask for more peremptory challenges in this situation. Merely challenging for cause is not enough. An affirmance is thus required.