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Florida Second DCA reverses trial court order granting defendant new trial in negligent hiring case involving high school football coach who allegedly physically abused student

On March 11, 2020, in Robinson v. Polk County School Board, No. 2D19-421, the Florida Second DCA reversed a trial court order which had granted the Polk County School Board a new trial after a jury found it liable for $125,000 in damages. The plaintiff alleged in his complaint that he had been subjected to verbal and physical abuse by his high school football coach and that the School Board was negligent in its hiring and retention of the coach. One of the plaintiff’s allegations at trial was that the coach had twisted his nipple, causing both pain and subsequent disfigurement. The extent to which the plaintiff had actually suffered any permanent disfigurement was a contested issue at trial, although there do not appear to have been any photographs or other visual evidence presented to the jury on this issue during the evidentiary phase of the case. During closing argument, defense counsel alluded to the lack of any visual evidence, prompting plaintiff’s counsel in rebuttal to state: “[i]n this case there isn't just a physical injury. And I could – and His Honor is not going to let me do it . . .” At this point, the trial court cut plaintiff’s counsel off, explaining that he was not going to allow him to “go beyond the evidence”. After the jury returned its verdict for the plaintiff, the defendant filed a motion for new trial alleging that when plaintiff’s counsel made the statement that was cut off by the court, plaintiff’s counsel had arranged for his client to simultaneously stand up and begin unbuttoning his shirt. The defendant claimed that this "improperly crystallized to the jury that the nipple was indeed damaged and at the same time vilified the defendant in their minds," such that the School Board was deprived of a fair trial. During the hearing on the new trial motion, which did not include any affidavits or other evidence proffered by the defense, the trial judge confirmed that the plaintiff had in fact stood up and “it looked like he was going to open his shirt.” After stating that it was a “close call” and that he could “almost flip a coin on this,” the trial court granted the new trial motion. On appeal, the Second DCA conclude that the trial court had neglected to engage in the analysis articulated by the Florida Supreme Court in Murphy [v. Int'l Robotic Sys., Inc., 766 So. 2d 1010, 1029-30 (Fla. 2000), which requires a trial court to determine (i) whether the comments and conduct were in fact improper, (ii) whether they caused harm that was "of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for" the comments and conduct; (iii) whether the harm was incurable (which is to say, had the trial court sustained a timely objection and taken curative measures, it "could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict"); and (iv) whether the comments and conduct "so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial." The Second DCA went on to conclude that if the trial court had conducted the required analysis, then based on the trial court’s “coin flip” comment, the second, third and fourth elements of the analysis would not have been satisfied. The Second DCA accordingly reversed the trial court’s order granting a new trial and remanded the case with instructions to reinstate the jury’s verdict.