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Publix Super Markets2/21/2003
Publix Super Markets, Inc., appeals the orders granting Julie Griffin and William Griffin a new trial in their personal injury action and imposing sanctions against Publix for the actions of its private investigator. The Griffins cross-appeal the jury verdict finding Mrs. Griffin 50% negligent. We find merit only in Publix's appeal and reverse.
Mrs. Griffin sustained severe injuries as a result of being hit in the head with the rear door of her van by the Publix employee who closed that door after helping her load her groceries into the van. She and her husband filed a personal injury action against Publix seeking damages for her injuries and concomitant losses. Because Mrs. Griffin's physical abilities were at issue, Publix hired an investigator to conduct and record surveillance of her. At trial, the Griffins played a portion of the surveillance tapes for the jury and had their expert comment on Mrs. Griffin's appearance. During its case-in-chief, Publix proceeded to play all of the surveillance tapes for the jury. At the point when the tapes showed the investigator going into the restroom at a McDonald's restaurant, the Griffins' counsel asked for a bench conference. Counsel advised the court that the copies of the surveillance tapes the Griffins had been given during discovery did not contain this scene. After much discussion, the jury was removed from the courtroom, and the tape was played further. It showed the Griffins' seven-year-old son washing his hands in the restroom. The tapes that had been provided to the Griffins were then played, and they did not contain this restroom scene. The copies of the tapes that Publix had been given also did not contain this scene.
The Griffins' counsel moved to strike the tapes and for a curative instruction. He also moved for a mistrial, as well as for attorneys' fees and discovery sanctions. The trial court granted the motion to strike and for a curative instruction. Counsel withdrew his motion for a mistrial after the court suggested he discuss a mistrial with his clients. After a recess, Publix's counsel moved for a mistrial on the ground that the total exclusion of the surveillance tapes greatly hampered its defense. The Griffins' counsel stated that he had discussed the matter with his clients and that they wished to resist a mistrial. They believed a curative instruction should be issued because to do otherwise would reward the wrongdoer. Further discussion was had, and the trial court denied Publix's motion for mistrial. The court asked the Griffins' counsel if he was withdrawing his motion for mistrial, and he responded affirmatively. The jury was brought back in the courtroom, and the trial court gave them a curative instruction before trial proceeded.
After the conclusion of trial, the jury returned a verdict finding Mrs. Griffin 50% negligent and awarding her damages of $270,000, which amount was reduced to $135,000 due to the comparative negligence finding. Final judgment in accordance with the jury's verdict was entered. The Griffins then moved for a new trial on several grounds: introduction of what they characterized as the illegally obtained and improper surveillance tapes; what they characterized as Publix's serious discovery violation involving spoliation of evidence; the trial court's failure to give a sufficiently strong curative instruction that advised the jury that the surveillance video was obtained improperly due to the misconduct of Publix and its agents; the trial court's denial of their motion for a directed verdict on the issue of comparative negligence; and that the jury's verdict was against the manifest weight of the evidence. The trial court granted the Griffins' motion and ordered a new trial. Publix file
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