The recent case Baker v. R.J. Reynolds Tobacco Co., 2015 WL 671192 (Fla. 4th DCA Feb. 18, 2015), underscores the significance of objecting at trial to preserve error on appeal in unsettled areas of the law or in anticipation that precedent may change. In some courts, like Florida, the failure to timely object results in waiver of the issue on appeal.
In Baker, the plaintiff sued R.J. Reynolds Tobacco Company, asserting her husband’s death was caused by smoking. The jury found for the defendant, concluding that its negligence was not the cause of the death. The plaintiff relied on a Florida Supreme Court opinion issued after trial, to support her request for a new trial.
The District Court of Appeal disagreed with the plaintiff and held that the plaintiff could not get the benefit of the change in the law that occurred after trial had concluded, because she had failed to preserve the argument by objecting at trial.
Preservation Issue(s):
- In order to take advantage of a change in the law on appeal, a party must first make the proper objection at trial to preserve the issue in some jurisdictions.
Tip(s):
Some might believe that Florida has imposed a harsh rule by requiring a party to anticipate a change in law. In fact, Florida is not alone on this issue. See e.g., Farthing v. Commonwealth, 2004 WL 758337 (Ky. Ct. App. Apr. 9, 2004) (“[W]hen new precedent has changed the...
