Kansas Gooden and Kevin Franz successfully defended against an appeal brought in the Third District Court of Appeal by a Plaintiff in a personal injury action. Plaintiff sued for damages after being struck as a pedestrian by a vehicle in the valet area of a condominium driveway. The case was tried by a jury, and the Plaintiff moved for a directed verdict arguing there was no evidence that she was negligent. Plaintiff had testified she did not look to see if a vehicle was approaching. There was also evidence that Plaintiff moved quickly from the safety of a sidewalk area back into the driveway at the moment of impact. The defense argued Plaintiff was comparatively at fault by stepping in between cars without looking in an area where cars were known to traverse. The Judge found this was a jury issue, and the jury ultimately placed 35% of fault on the Plaintiff.
Post-trial, Plaintiff renewed her motion for directed verdict in seeking to apportion all fault on Defendant. Defendant argued that Plaintiff as the pedestrian owed a duty of care to look before she stepped into the driveway, and that a reasonable jury could find comparative fault on Plaintiff for failing to do so. The trial court judge agreed and denied Plaintiff’s Motion. Plaintiff appealed to the Third District Court of Appeal. On appeal, the Defendant argued that (a) the evidence supported the jury’s finding of comparative fault; (b) the record was inadequate to demonstrate reversable error based on a lack of critical photographic evidence; (c) Plaintiff failed to raise on appeal one ground articulated by the trial court for upholding the verdict, which necessitated affirmance; and (d) Plaintiff waived the right to seek a judgment in accordance with directed verdict in the first place by failing to serve a timely motion with the trial court. The appellate court issued a per curiam affirmed (“PCA”) opinion, thus upholding the jury’s verdict.
About Kansas R. Gooden:
Kansas R. Gooden, a Board Certified Appellate Specialist and AV Rated attorney, serves as the firm’s Appellate Practice Group Leader. Ms. Gooden has extensive experience handling all types of civil appellate proceedings in the Florida Supreme Court, all Florida District Courts of Appeal, and the U.S. Circuit Court of Appeals for the Eleventh Circuit. She is one of the only attorneys who has argued back-to-back cases on the same day before the Florida Supreme Court. Ms. Gooden often handles cases of first impression, and those involving insurance coverage and bad faith issues.
About Kevin D. Franz:
Kevin D. Franz is a Partner with the firm’s Appellate Practice division. Mr. Franz is Board Certified in Appellate Practice by The Florida Bar. He has received the Martindale-Hubbell AV Preeminent® Peer Review Rating, and has more than 13 years of experience handling all types of civil appellate proceedings. Mr. Franz has handled appeals and petitions in all five district courts of appeal for the State of Florida and the Supreme Court of Florida, argued before all five district courts of appeal, and handled appeals in the United States Court of Appeals for the Eleventh Circuit.