On May 23, 2012 a
Motion,Ex Parte
was filed
involving a dispute between
Sandy Wittke,
and
Wal-Mart Stores Inc,
for Circuit Civil
in the District Court of Manatee County.
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Filing # 29201910 E-Filed 07/02/2015 09:36:16 AM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR MANATEE COUNTY, FLORIDA
SANDY WITTKE,
Plaintiff, Case No.: 2012 CA 3458
Vv.
WAL-MART STORES, INC.
Defendant.
/
MOTION FOR NEW TRIAL
Plaintiff, SANDY WITTKE, by and through undersigned counsel moves this Court for
entry of an order granting a new trial and/or in the alternative a judgment notwithstanding the
verdict and states in support thereof:
‘The Plaintiff asserts that they proved by substantial competent evidence the following:
1 WAL-MART STORES, INC. (store #1004) failed to follow policies and procedures
requiring a floor mat in the vestibule. The existence of a floor mat would have prevented the
injury to the Plaintiff.
2. WAL-MART STORES, INC. (store #1004) failed to follow policies and procedures
regarding the “sweeper” by failing to come behind the sweeper with a clean wet mop as required
by longstanding and current WAL-MART policies.
3 WAL-MART STORES, INC. (store #1004) violated their stated policies as testified to by
Ronald Hancock, the maintenance man and Marilyn Huntsinger the safety team leader. Mr.
Hancock testified that once the fans are turned on in the vestibule area WAL-MART employees
are required to “constantly” check the area. Marylyn Huntsinger testified that once the fans are
turned on the at the vestibule area, the WAL-MART employees should check the area at
reasonable intervals.
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4 ‘The video evidence as well as the lack of testimony from any store employee indicates
that the area was not checked for at least forty eight (48) to fifty nine (59) minutes, depending
upon time testimony and arguments of counsel as to how long it was between the time the fans
were turned on and any employee from WAL-MART (store #1004) checked the area.
5 Counsel for the defense argued to the court that they should be entitled to tell the jury
how many individuals walked through the doorway in that forty eight (48) to Fifty nine (59)
minute period. Counsel for the Plaintiff object and the Court advised the Defendant that they
would allow them to inquire as to question but that line of testimony should proceed no further,
6. Despite the Courts ruling, in closing argument counsel for the defense pulled up a
PowerPoint slide, which had not been previously seen by Plaintiffs’ counsel, with a graphic
design of seventy five (75) stick figures. Counsel for the defense then argued to the jury that this
many people walked through the door between the time the fans were turned on and a WAL-
MART employee checked the vestibule area.
7 This argument in closing was misleading to the jury in that the defense witnesses had
agreed all shapes, sizes, types of people wearing all types of shoes and entering the door at all
different angels may have occurred in that seventy five (75) minute time frame. However, the
depiction shown in the PowerPoint were of identical stick figures as a representation of the
seventy five (75) people without any further argument or explanation regarding their size, shape,
shoe type or mode of entrance.
8 Counsel for the Plaintiff argues that this portion of the closing defied the Courts previous
order wherein the Court had instructed the defense that while they mention this issue they were
to carry the issue no further.
9 Counsel for the Plaintiff also argues that the Court erred in failing to allow the Plaintiff to
tell the jury that the Plaintiff had been determined to be totally disabled and was collecting Social
E-Filed with MCCC - 2012CA003458AX- 7/2/2015 9:36 AM - PG 2 of 3
Security Disability payments. Even though the defense was aware of this fact, they argued to the
jury in closing argument that no physician or doctor had indicated that the Plaintiff was unable to
work. This is not only inaccurate, but misleading to the jury and could possibly have led to the
jury to believe that the Plaintiff lacked credibility and was simply trying to seek a “handout”
from the jury.
10. The verdict is contrary to the manifest weight of the evidence.
11. The verdict is contrary to the manifest weight of the law.
12. The verdict is contrary to the manifest weight of the law and evidence.
13. The Plaintiff may argue other reasons for a new trial or judgment notwithstanding the
verdict and reserves the right to amend this Motion to make such additional arguments as
determined.
WHEREFORE, the Plaintiff request this court enter a judgment notwithstanding the
verdict and/or provide the Plaintiff a new trial on the issues in this matter.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to Paul
Fulmer, Esq. 1 North Dale Mabry Highway 11" Floor, Tampa, FL 33609 via electronic mail to:
gnd
pbf.service@rissman.com on this day of July 2015.
OD
Melton H. Little, Esquire
Kallins, Little & Delgado P.A.
433 8th Avenue West
Palmetto, FL 34221
(941) 749-1446 Telephone
(941) 746-6903 Facsimile
Ch rvice@kallinsandlittle.com
Attorney for Plaintiff
Florida Bar No.: 0603015
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Document Filed Date
July 02, 2015
Case Filing Date
May 23, 2012
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Filing # 29201910 E-Filed 07/02/2015 09:36:16 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA SANDY WITTKE, Plaintiff, Case No.: 2012 CA 3458 Vv. WAL-MART STORES, INC. Defendant. / MOTION FOR NEW TRIAL Plaintiff, SANDY WITTKE, by and through undersigned counsel moves this Court for entry of an order granting a new trial and/or in the alternative a judgment notwithstanding the verdict and states in support thereof: ‘The Plaintiff asserts that they proved by substantial competent evidence the following: 1 WAL-MART STORES, INC. (store #1004) failed to follow policies and procedures requiring a floor mat in the vestibule. The existence of a floor mat would have prevented the injury to the Plaintiff. 2. WAL-MART STORES, INC. (store #1004) failed to follow policies and procedures regarding the “sweeper” by failing to come behind the sweeper with a clean wet mop as required by longstanding and current WAL-MART policies. 3 WAL-MART STORES, INC. (store #1004) violated their stated policies as testified to by Ronald Hancock, the maintenance man and Marilyn Huntsinger the safety team leader. Mr. Hancock testified that once the fans are turned on in the vestibule area WAL-MART employees are required to “constantly” check the area. Marylyn Huntsinger testified that once the fans are turned on the at the vestibule area, the WAL-MART employees should check the area at reasonable intervals. E-Filed with MCCC - 2012CA003458AX- 7/2/2015 9:36 AM - PG 1 of 3 4 ‘The video evidence as well as the lack of testimony from any store employee indicates that the area was not checked for at least forty eight (48) to fifty nine (59) minutes, depending upon time testimony and arguments of counsel as to how long it was between the time the fans were turned on and any employee from WAL-MART (store #1004) checked the area. 5 Counsel for the defense argued to the court that they should be entitled to tell the jury how many individuals walked through the doorway in that forty eight (48) to Fifty nine (59) minute period. Counsel for the Plaintiff object and the Court advised the Defendant that they would allow them to inquire as to question but that line of testimony should proceed no further, 6. Despite the Courts ruling, in closing argument counsel for the defense pulled up a PowerPoint slide, which had not been previously seen by Plaintiffs’ counsel, with a graphic design of seventy five (75) stick figures. Counsel for the defense then argued to the jury that this many people walked through the door between the time the fans were turned on and a WAL- MART employee checked the vestibule area. 7 This argument in closing was misleading to the jury in that the defense witnesses had agreed all shapes, sizes, types of people wearing all types of shoes and entering the door at all different angels may have occurred in that seventy five (75) minute time frame. However, the depiction shown in the PowerPoint were of identical stick figures as a representation of the seventy five (75) people without any further argument or explanation regarding their size, shape, shoe type or mode of entrance. 8 Counsel for the Plaintiff argues that this portion of the closing defied the Courts previous order wherein the Court had instructed the defense that while they mention this issue they were to carry the issue no further. 9 Counsel for the Plaintiff also argues that the Court erred in failing to allow the Plaintiff to tell the jury that the Plaintiff had been determined to be totally disabled and was collecting Social E-Filed with MCCC - 2012CA003458AX- 7/2/2015 9:36 AM - PG 2 of 3 Security Disability payments. Even though the defense was aware of this fact, they argued to the jury in closing argument that no physician or doctor had indicated that the Plaintiff was unable to work. This is not only inaccurate, but misleading to the jury and could possibly have led to the jury to believe that the Plaintiff lacked credibility and was simply trying to seek a “handout” from the jury. 10. The verdict is contrary to the manifest weight of the evidence. 11. The verdict is contrary to the manifest weight of the law. 12. The verdict is contrary to the manifest weight of the law and evidence. 13. The Plaintiff may argue other reasons for a new trial or judgment notwithstanding the verdict and reserves the right to amend this Motion to make such additional arguments as determined. WHEREFORE, the Plaintiff request this court enter a judgment notwithstanding the verdict and/or provide the Plaintiff a new trial on the issues in this matter. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished to Paul Fulmer, Esq. 1 North Dale Mabry Highway 11" Floor, Tampa, FL 33609 via electronic mail to: gnd pbf.service@rissman.com on this day of July 2015. OD Melton H. Little, Esquire Kallins, Little & Delgado P.A. 433 8th Avenue West Palmetto, FL 34221 (941) 749-1446 Telephone (941) 746-6903 Facsimile Ch rvice@kallinsandlittle.com Attorney for Plaintiff Florida Bar No.: 0603015 E-Filed with MCCC - 2012CA003458AX- 7/2/2015 9:36 AM - PG 3 of 3