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Enriquez v. Cochran7/30/1998
ed to give one. We caution that we are not deciding such an instruction would have been sufficient to cure the problem posed by Counsel's statements. See (" ourts traditionally do not reach out to decide issues unnecessarily."). However, failure to give the instruction may be viewed in conjunction with the other factors noted above in determining whether the prejudicial effect of the statements were cured at the trial court level. See Otis Elevator Co., 474 So. 2d at 83.
{138}We conclude that the last two statements made to the jury were improper and prejudicial. Cf. Holt, 507 So. 2d at 391 ("This Court has consistently recognized that a reference by counsel for either party to the wealth or economic condition of either party is improper and prejudicial."). Further, the cautionary actions of the district court were not sufficient to meet the resulting prejudice. Finally, although we agree with Cochran that the evidence of his negligence was far from overwhelming (as Plaintiff contends it was), we are frankly at a loss to explain why the jury assessed Plaintiff with ten percent of the negligence while assessing Cochran with zero. The most plausible explanation is that the jury was, in fact, impressed with Counsel's argument about Cochran's lack of resources. Consequently, we reverse the decision and remand for a new trial against Cochran. See (" judgment will be reversed and a new trial ordered where lawyers go outside the record when they address the jury or attempt to influence the minds of the jury against opposing litigants.").
Conclusion
{139}The judgment is affirmed as to all issues raised by BSA in its appeal. The judgment is reversed and remanded to the trial court for entry of an amended judgment against BSA providing for joint and several liability. The trial court is affirmed as to all other issues raised by Plaintiff's Cross-Appeal. The judgment on the verdict in favor of Defendant Cochran is reversed, and the matter is remanded for a new trial as to him. Plaintiff is awarded costs on appeal.
{140}IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
LYNN PICKARD, Judge
BENNY E. FLORES, Judge
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