Case No. SC12-2155

IN THE SUPREME COURT SSTATE OF FLORIDA

R.J. REYNOLDS TOBACCO COMPANY,

Defendant/Petitioner,

V.

JAN GROSSMAN, AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF LAURA GROSSMAN, DECEASED,

Plaintiff/Respondent.

ON DISCRETIONARY REVIEW FROM A DECISION

OF THE FOURTH DISTRICT COURT OF APPEAL

BRIEF ON JURISDICTION OF PETITIONERR.J. REYNOLDS TOBACCO COMPANY

Charles R.A. Morse Gordon James IIIFlorida Bar No. 91561 Florida Bar No. 0150077JONES DAY Eric L. Lundt222 East 41st Street Florida Bar No. 0861715New York, NY 10017 SEDGWICK LLPTelephone: (212) 326-3939 2400 E. Commercial Blvd.Telecopier: (212) 755-7306 Suite 1100

Fort Lauderdale, FL 33308Telephone: (954) 958-2500Fax: (954) 958-2513

Counselfor Petitioner

TABLEOFCONTENTS

I. The Court Has Jurisdiction Over The Fourth District's Decision.................. 4

A. The Fabre Holding Expressly And Directly Conflicts With TheDecisions Of This Court And Other District Courts............................ 4

B. The Decision Below Misapplied This Court's Engle Opinion ............ 7

II. The Court Has Compelling Reasons To Exercise Its DiscretionaryJurisdiction In This Case.................................................................................9

1

TABLE OF CITATIONSPage(s)

CASES

Abbott v. Dorleans,41 So. 3d 984 (Fla. 4th DCA 2010)..................................................................... 7

Bagwell v. Bagwell,14 So. 2d 841 (Fla. 1943).....................................................................................8

Bogosian v. State Farm Mutual Automobile Insurance Co.,817 So. 2d 968 (Fla. 3d DCA 2002).................................................................... 7

In re Certification ofNeedfor Additional Judges,60 So. 3d 955 (Fla. 2011)................................................................................... 10

Collins v. State,26 So. 3d 1287 (Fla. 2009).............................................................................9, 10

D'Oleo-Valdez v. State,531 So. 2d 1347 (Fla. 1988).................................................................................4

Engle v. Liggett Group, Inc.,945 So. 2d 1246 (Fla. 2006)................................................................................. 1

Fabre v. Marin,623 So. 2d 1182 (Fla. 1983)......................................................................... 1, 5, 9

Fayerweather v. Ritch,195 U.S. 276 (1904).............................................................................................8

Hardee v. State,534 So. 2d 706 (Fla. 1988)...................................................................................4

Jacobson v. State,476 So. 2d 1282 (Fla. 1985)................................................................................. 9

Jaimes v. State,51 So. 3d 445 (Fla. 2010).................................................................................7, 8

Nash v. Wells Fargo Guard Services, Inc.,678 So. 2d 1262 (Fla. 1996)................................................... 1, 3, 4, 5, 6, 7, 9, 10

11

Philip Morris USA, Inc. v. Douglas,No. SC12-617 (Fla. 2012)..........................................................................2, 8, 10

Probkevitz v. Velda Farms, LLC,22 So. 3d 609 (Fla. 3d DCA 2009)...................................................................... 6

Regions Bank v. Capital Square, Inc.,83 So. 3d 900 (Fla. 3d DCA 2012)............................................ 1, 3, 5, 6, 7, 9, 10

R.J. Reynolds v. Brown,70 So. 3d 707 (Fla. 4th DCA 2011)......................................................... 1, 3, 4, 8

Savoie v. State,422 So. 2d 308 (Fla. 1982)...................................................................................9

Schindler Elevator Corp. v. Viera,693 So. 2d 1106 (Fla. 3d DCA 1997)........................................ 1, 3, 5, 6, 7, 9, 10

Wallace v. Dean,3 So. 3d 1035 (Fla. 2009).................................................................................7, 8

OTHER

Art. V, § 3(b)(3), Fla. Const......................................................................................4

§ 768.81(3), Fla. Stat.................................................................................................9

111

STATEMENT OF THE CASE AND FACTS

The ruling of the Fourth District in this case creates an express and direct

conflict with this Court' s decision in Nash v. Wells Fargo Guard Services, Inc.,

678 So. 2d 1262 (Fla. 1996), and the Third District's decisions in Regions Bank v.

Capital Square, Inc., 83 So. 3d 900 (Fla. 3d DCA 2012), and Schindler Elevator

Corp. v. Viera, 693 So. 2d 1106 (Fla. 3d DCA 1997). In Nash, this Court held that

"a reversal precipitated by" an error under Fabre v. Marin, 623 So. 2d 1182 (Fla.

1983), "does not affect the determination of damages" and, thus, that the remedy

"should not ... extend[] to a new trial on damages." 678 So. 2d at 1263-64. The

Third District has faithfully "follow[ed] Nash, in concluding that a reversal

precipitated by Fabre errors does not affect the determination of damages and

should not require a new trial on damages," and that any remedy is limited to a

new trial "solely" on "apportionment of fault." Regions Bank, 83 So. 3d at 902;

accord Viera, 693 So. 2d at 1108-09. The Fourth District departed from these

authorities when it held that "the proper remedy" for a Fabre error "may be an

entirely new trial" and remanded this case "for an entirely new trial on all Phase II

issues," including liability, damages, and apportionment of fault. A:4, 6.

The Fourth District also misapplied this Court's decision in Engle v. Liggett

Group, Inc., 945 So. 2d 1246 (Fla. 2006), by following its earlier decision in R.J.

Reynolds v. Brown, 70 So. 3d 707 (Fla. 4th DCA 2011), regarding the proper use

1

of the Engle findings. A:1. Reynolds's petition for discretionary review in Brown

is pending before this Court (No. SC11-2201), and, on September 6, 2012, the

Court held oral argument in Philip Morris USA, Inc. v. Douglas, No. SC 12-617,

concerning whether due process prevents use of the Engle findings to establish

essential elements in individual progeny cases.

Respondent Jan Grossman sued Petitioner R.J. Reynolds Tobacco Company

for the death of his wife, Laura, invoking this Court's decision in Engle. A:1. In

Phase I of the trial, the jury found that Ms. Grossman qualified as a member of the

decertified Engle class. Id. Phase II of the trial dealt with the remaining issues in

the case (as seen by the trial court): liability on the strict-liability, negligence,

concealment, and conspiracy claims; apportionment of fault; and damages. A:1-2.

"At trial, Jan acknowledged his lack ofjudgment and 'fault' in buying

cigarettes for Laura." A:4. The trial court therefore "include[d] Jan on the verdict

form as a negligent party and allowed evidence and argument concerning his

failure to prevent Laura from smoking." A:2. The jury found for Plaintiff on the

strict-liability claim and for Reynolds on the negligence, concealment, and

conspiracy claims. Id. It allocated only 5% of the fault to Plaintiff, 70% to Ms.

Grossman, and 25% to Reynolds. Id. The final judgment accordingly reduced Ms.

Grossman's survivors' total damages of $1,934,727.39 to $483,681.85. Id.

2

On appeal, the Fourth District applied Brown to reject Reynolds's argument

that the trial court's use of the Engle findings to establish essential elements of the

claims here violated Florida law and due process. A:1. However, it reversed the

judgment on Plaintiff s cross-appeal, which challenged the trial court's decision to

include him as a responsible party on the verdict form; the court concluded that,

despite Plaintiff s acknowledgement of "fault," Reynolds "failed to establish

[Plaintiff s] breach of a legal duty." A:4.

Turning to the remedy, the Fourth District noted that Plaintiff sought "a new

trial" only "on damages and apportionment of liability." A:2. The Fourth District

also identified prejudice against Plaintiff purportedly going only to "damages and

apportionment" of fault; the court reasoned that "there is no way to know how the

jury would have decided" those issues if Plaintiff s fault had "not been injected

into the trial." A:6. Yet it went beyond even Plaintiff s request for a limited new

trial and its own reasoning and "remand[ed] the case for an entirely new trial on all

Phase II issues," including liability, damages, and apportionment of fault. Id.

SUMMARY OF ARGUMENT

The Court has jurisdiction because the Fourth District's decision expressly

and directly conflicts with Nash, Regions Bank, and Viera by departing from their

holding that the remedy for a Fabre error is a new trial limited to apportionment of

fault and ordering "an entirely new trial on all Phase II issues." A:6. The Court

3

also has jurisdiction because the Fourth District, relying on its decision in Brown,

misapplied Engle in upholding the trial court's use of the Engle findings.

The Court should exercise its jurisdiction. The issues presented directly

affect numerous cases and impact the allocation of scarce judicial resources in trial

courts across the State. Moreover, this case and Douglas should receive the same

treatment as to the identical due-process question presented in both cases.

ARGUMENT

I. The Court Has Jurisdiction Over The Fourth District's Decision

A. The Fabre Holding Expressly And Directly Conflicts With TheDecisions Of This Court And Other District Courts

This Court has jurisdiction because the decision below "expressly and

directly conflicts with" the Court's decision in Nash and the Third District's

decisions in Regions Bank and Viera. Art. V, § 3(b)(3), Fla. Const. An express

and direct conflict exists if a district court's opinion adopts a holding or rationale

that squarely conflicts with the holding of this Court or another district court. See,

e.g., Hardee v. State, 534 So. 2d 706, 707 (Fla. 1988); D'Oleo- Valdez v. State, 531

So. 2d 1347, 1348 (Fla. 1988). That standard is met here.

In Nash, the Court addressed the proper remedy for a trial court's failure to

include a Fabre defendant on the verdict form. See 678 So. 2d at 1263. This

Court held that because "a reversal precipitated by Fabre errors does not affect the

4

determination of damages," the remedy "should not ... extend[] to a new trial on

damages." Id. at 1263-64.1

The Third District has faithfully "follow[ed] Nash, in concluding that a

reversal precipitated by Fabre errors does not affect the determination of damages

and should not require a new trial on damages." Regions Bank, 83 So. 3d at 902;

accord Viera, 693 So. 2d at 1108-09. Thus, the Third District limits any new trial

awarded as a remedy for a Fabre error "solely" to "apportionment of fault."

Regions Bank, 83 So. 3d at 902; accord Viera, 693 So. 2d at 1108-09.

This rule makes perfect sense: an error in placing a party's name on the

verdict form affects the percentage assigned to the parties placed on the form, but

does not affect the existence of liability or the amount of damages flowing from

the injury. Fabre, 623 So. 2d at 1185; see also Nash, 678 So. 2d at 1263. Put

another way, the error is in the slicing of the pie, not its existence or size.

The Fourth District's holding below directly conflicts with this rule. The

Fourth District held that "the proper remedy" for a Fabre error "may be an entirely

new trial" and "remand[ed] the case for an entirely new trial on all Phase II

1 In Nash, the Court did approve three Third District precedents grantingnew trials on liability, but, as the Third District later explained, the parties in Nashaccepted a new trial on liability-the only question was whether the new trialshould include damages as well. See Viera, 693 So. 2d at 1109. The ordinary ruleremains that "where there has already been a determination" of liability, "there isno need on remand to retry those issues but, on the contrary, the remand can beconfined to the issue of apportionment." Id

5

issues," including liability and amount of damages. A:4, 6 (emphasis added). It

could not have adopted this remedy without rejecting this Court's holding that "a

reversal precipitated by Fabre errors does not affect the determination of

damages," Nash, 678 So. 2d at 1263, and the Third District's holding that, under

Nash, any new trial is limited "solely" to "apportionment of fault," Regions Bank,

83 So. 3d at 902; accord Viera, 693 So. 2d at 1108-09.

The Fourth District did not cite Nash, Regions Bank, or Viera. A:5-6.

Instead, it invoked inapposite cases for its holding that "[w]hen a Fabre defendant

is improperly included on a verdict form, the proper remedy may be an entirely

new trial." A:5. As its primary authority, the Fourth District relied on a case that

neither party cited in the briefing, Probkevitz v. Velda Farms, LLC, 22 So. 3d 609,

615 (Fla. 3d DCA 2009) (cited at A:5-6). There is a reason Probkevitz did not

appear in the briefs-because it stands for the irrelevant proposition that the

"improper[] introduc[tion]" of inadmissible evidence may require a new trial.

22 So. 3d at 615. Plaintiff did not argue that the trial court admitted inadmissible

evidence. Nor could he have done so: much of the evidence that Reynolds

identified in support of its now-disallowed Fabre defense was testimony that

Plaintiff himselfadduced, including his "acknowledge[ment]" of "his lack of

judgment and 'fault' in buying cigarettes for Laura." A:4.

6

The decision in A bbott v. Dorleans, 41 So. 3d 984 (Fla. 4th DCA 2010)

(cited at A:5) is inapposite. That case did not even reach the question whether a

Fabre error had occurred because the plaintiff "withdr[ew] the cross-appeal." Id.

at 987. Moreover, even ifA bbott were understood to require "an entirely new

trial" (A:4, 6)-and the only indication is a passing suggestion that the "proper

remedy" for a Fabre error "would be a new trial" of unspecified scope-that

would only solidify the conflict with Nash, Regions Bank, and Viera. And

Bogosian v. State Farm Mutual Automobile Insurance Co., 817 So. 2d 968 (Fla. 3d

DCA 2002)(cited at A:5), addressed the appropriate remedy when a failure to

plead a Fabre defense deprived the plaintiff of "fair notice" and an "opportunity to

plan a defense or gather evidence and witnesses." Id. at 971. That issue did not

arise here; Reynolds properly pled a Fabre defense, and Plaintiff lost no

opportunity to plan his response. Bogosian did not so much as mention, much less

overrule, the Third District's earlier decision in Viera, and was not mentioned in

that court's later decision in Regions Bank.

B. The Decision Below Misapplied This Court's Engle Opinion

This Court has jurisdiction over a district court's decision that misapplies a

decision of this Court. Jaimes v. State, 51 So. 3d 445, 446 (Fla. 2010); Wallace v.

Dean, 3 So. 3d 1035, 1040 (Fla. 2009). The Fourth District did precisely that here

7

when it upheld, based on Brown, the trial court's use of the Engle findings to

"preclud[e] [Reynolds] from contesting certain factual issues." A:1.

Engle did not expunge decades of settled precedent establishing that issue

preclusion applies only to "precise facts" that were "determined by [a] former

judgment." Bagwell v. Bagwell, 14 So. 2d 841, 843 (Fla. 1943). Nor did Engle

affect, much less overrule, the settled rule that federal due process requires the

same limitation. See, e.g., Fayerweather v. Ritch, 195 U.S. 276 (1904). Yet

Brown construed Engle's "mandate" to permit plaintiffs to use the Engle findings

to preclude litigation of certain facts without showing that those facts were actually

decided in Engle. See, e.g., 70 So. 3d at 714-16. The Fourth District's repeating

of this misapplication ofEngle provides jurisdiction here. See, e.g., Jaimes, 51

So. 3d at 446; Wallace, 3 So. 3d at 1040.

Moreover, the Fourth District in Brown expressed "concern[]" that

according to the Engle fmdings such broad "preclusive effect ... violates [the

defendants'] due process rights." 70 So. 3d at 716; see also id. at 720 (May, C.J.,

concurring). Reynolds's petition to invoke this Court's discretionary review in

Brown remains pending (No. SC11-2201)-and the Court recently held oral

argument in Douglas (No. SC12-617) on the due process limitations on the use of

the Engle findings. At the very least, the Court should hold this case pending a

resolution of Brown and Douglas to ensure consistent treatment among cases

8

presenting identical issues. Cf, e.g., Collins v. State, 26 So. 3d 1287 (Fla. 2009).

Alternatively, because the Court has jurisdiction over the Fourth District's ruling

on the Fabre remedy, it should exercise its discretion to assume jurisdiction over

the issues implicated by the Engle findings. See Jacobson v. State, 476 So. 2d

1282, 1285 (Fla. 1985) ("Having jurisdiction, we have jurisdiction over all

issues ...."); Savoie v. State, 422 So. 2d 308, 312 (Fla. 1982) ("once this Court has

jurisdiction of a cause, it has jurisdiction to consider all issues appropriately raised

in the appellate process").

II. The Court Has Compelling Reasons To Exercise Its DiscretionaryJurisdiction In This Case

The Court should exercise its jurisdiction for at least three reasons. First,

Fabre defenses are routinely pled in negligence actions across the State, and

alleged Fabre errors arise in numerous cases. See, e.g., § 768.81(3), Fla. Stat.;

Nash, 678 So. 2d at 1263-64; Regions Bank, 83 So. 3d at 902-03; Viera, 693

So. 2d at 1108. This large number of cases underscores the importance of the

question of the proper remedy for a Fabre error.

Second, clarification from the Court on the Fabre issue would promote

judicial economy and conserve the resources of this Court and the lower courts.

The rationale of the Nash rule is that any Fabre error does not affect the jury's

findings regarding the existence of liability or the amount of damages flowing

from the injury. See, e.g., Fabre, 623 So. 2d at 1185; see also Nash, 678 So. 2d at

9

1263. The rule therefore judiciously limits the scope of any new trial "solely" to

"apportionment of fault." Regions Bank, 83 So. 3d at 902; accord Viera, 693

So. 2d at 1108-09. The Fourth District's contrary approach removes all limits on

the remedy for a Fabre error, and burdens trial courts to hold "an entirely new

trial," including on issues on which no party was prejudiced. A:5-6. This Court's

reiteration of the Nash rule would remove this unnecessary burden at a time of

"protracted economic difficulties" and "substantial caseloads" facing the trial

courts of this State. In re Certification ofNeedfor Additional Judges, 60 So. 3d

955, 955, 957 (Fla. 2011).

Finally, the question about the preclusive effect of the Engle findings is

already before this Court in Douglas, No. SCl2-617. It is only fair that like cases

should be decided alike, and that any holding reached in Douglas should be

applied here. Cf Collins, 26 So. 3d at 1288 (accepting jurisdiction based on

pendency of identical issue in another case). Accordingly, the Court should either

accept jurisdiction or, at a minimum, defer ruling on jurisdiction until Douglas is

decided.

CONCLUSION

Reynolds requests that the Court grant review.

10

Respectfully submitte

Charles R.A. Morse Gor n JamFlorida Bar No. 91561 Florida Bar 150077cramorse@jonesday.com gordon.james@sedgwicklaw.comJONES DAY Eric L. Lundt

222 East 41st Street Florida Bar No. 0861715New York, NY 10017 eric.lundt@sedgwicklaw.comTelephone: (212) 326-3939 SEDGWICK LLPTelecopier: (212) 755-7306 2400 E. Commercial Blvd.

Suite 1100Fort Lauderdale, FL 33308Telephone: (954) 958-2500Fax: (954) 958-2513

Counselfor PetitionerR.J. Reynolds Tobacco Co.

11

CERTIFICATE OF SERVICE

I certify that on October 26, 2012, a copy of this motion was served on

counsel listed below by e-mail in accordance with Fla. R. Jud. Admin. 2.516.

Bard D. Rockenbach, Esq.BURLINGTON & ROCKENBACH, P.A.Courthouse Commons/Suite 430444 West Railroad AvenueWest Palm Beach, FL 33401E-mails: bdr@FLAppellateLaw.com

fa@FLAppellateLaw.comCounselfor Respondent

Jonathan Gdanski, Esq.SCHLESINGER LAW OFFICES, P.A.1212 Southeast Third AvenueFt. Lauderdale, FL 33316E-mail: jonathan@schlesingerlaw.comCounselfor Respondent

CoÓsel for . . Reynolds To acco Co.

12

CERTIFICATE OF COMPLIANCE

Pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), counsel for

Appellants hereby certifies that the foregoing brief complies with the applicable

font requirements because it is written in 14-point Times New Roman font.

DATED: October 26, 2012

13

INDEX

R.J. Reynolds Tobacco Co. v. Grossman ANo. 4D10-2993 (Fla. 4th DCA June 27, 2012)

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICT

January Term 2012

R.J. REYNOLDS TOBACCO COMPANY,Appellant,

v.

JAN GROSSMAN, as Personal Representative of the Estate of LauraGrossman, deceased,

Appellee.

No. 4D10-2993

[ June 27, 2012 ]

TAYLOR, J.

R.J. Reynolds appeals the final judgment entered on a jury verdict forthe Estate of Laura Grossman. R.J. Reynolds argues that the trial courterred in precluding it from contesting certain factual issues, pursuant toEngle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). We affirm. SeeR.J. Reynolds v. Brown, 70 So. 3d 707, 717-18 (Fla. 4th DCA 2011)(affirming the use of the Engle findings to establish the conduct elementof strict liability claim and duty and breach elements of negligenceclaim). R.J. Reynolds also argues that the trial court improperlyadmitted lay witness testimony regarding the decedent's addiction tocigarettes. We disagree and affirm on this issue as well. Brown, 70 So.3d at 717 ("Mrs. Brown and her daughter provided lay opinion testimony,which, when viewed with the expert testimony, supported a finding ofaddiction."). However, on the cross-appeal filed by Jan Grossman, thedecedent's husband and personal representative of her estate, wereverse. The trial court erred by placing Jan Grossman on the verdictform as a liable party and allowing evidence and argument concerninghis failure to prevent the decedent from smoking.

Laura Grossman passed away on November 11, 1995, at the age ofthirty-six years, after a prolonged battle with lung cancer. She wassurvived by her husband and her two young children.

Jan met Laura while operating the register at his variety store, J-MartVariety. Every day Laura walked across the street to purchase a pack ofcigarettes from Jan. They started dating, and they married after a two-

A:1

year courtship. Throughout their marriage, Laura was a heavy smoker;she smoked "all the time." She never sought professional help to quitsmoking, and Jan never asked her to stop smoking or tried to help herquit. When testifying on the subject of her addiction, Jan testified that,"when she ran out, she was temperamental," and "it was hard to livewith." He recalled that she once threw a plate of food at him when hewould not get her a pack of cigarettes. Another time, Jan had to drivethrough a blizzard to find a pack for her. According to Jan, "she couldn'tdo anything unless she had the cigarettes." He remembered numeroustimes when he would have to pull up the gate, disable the alarm, andreopen the J-Mart so she could get a pack or carton of cigarettes.

At the commencement of Phase II of the trial, the Estate orallyobjected to any argument by R.J. Reynolds that Jan was a comparativelynegligent party at fault for Laura's death. The claim R.J. Reynolds madeagainst Jan, and its reasoning for adding him to the verdict form forapportionment of some fault to him, was essentially that he failed tocontrol Laura's smoking behavior and supported her habit. Specifically,R.J. Reynolds accused Jan of supplying Laura with cigarettes, smokingin front of her when she was trying to quit smoking, and neverdiscussing the evils of smoking with Laura or encouraging her to quit.

Over the Estate's objection, the trial court allowed R.J. Reynolds toinclude Jan on the verdict form as a negligent party and allowed evidenceand argument concerning his failure to prevent Laura from smoking.The Estate argues that the trial court's error in doing so negatively andunfairly limited the damages verdict. The jury awarded only $290,000 toJan in past damages for the death of his wife and nothing for futureemotional damages, $500,000 for pain and suffering to the youngestchild, and $800,000 to the oldest child. The jury determined that Janwas 5% at fault for the injuries suffered by his late wife. It apportioned70% liability to Laura and 25% to R.J. Reynolds. Of the total jury verdictaward of $1,934,727.39, the final judgment for the Estate amounted to$483,681.85. The Estate claims it is entitled to a new trial on damagesand apportionment of liability.

A nonparty defendant, also known as a Fabrel defendant, may not beincluded on the verdict form until a defendant has proved the nonparty'snegligence at trial:

1 Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), receded from on other grounds,Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So. 2d 249, 254 (Fla. 1995}.

2

A:2

In order to allocate any or all fault to a nonparty and includethe named or unnamed nonparty on the verdict form forpurposes of apportioning damages, a defendant must proveat trial, by a preponderance of the evidence, the fault of thenonparty in causing the plaintiff s injuries.

§ 768.81(3)(b), Fla. Stat. (2006). R.J. Reynolds was required to proveJan's fault, including the breach of a duty he owed to his late wife, beforehe could be placed on the verdict form as a nonparty defendant.

The existence of a legal duty is purely a question of law and is subjectto de novo review. See McCain v. Fla. Power Corp., 593 So. 2d 500, 501-02 (Fla. 1992). Additionally, "the mere relationship of husband and wifedoes not in and of itself constitute a sufficient basis upon which toimpute to the wife or husband the negligence of the other." Ward v.Baskin, 94 So. 2d 859, 860 (Fla. 1957) (citing Bessett v. Hackett, 66 So.2d 694, 698 (Fla. 1953)).

R.J. Reynolds argues that Jan owed Laura a duty because "Florida,like other jurisdictions, recognizes that a legal duty will arise whenever ahuman endeavor creates a generalized and foreseeable risk of harmingothers." McCain, 593 So. 2d at 503. While R.J. Reynolds cites thecorrect legal rule, we find the argument that Jan created a "zone of risk"to be unpersuasive under the facts of this case. It is patentlyunreasonable to conclude that Jan created a zone of risk by notpreventing Laura from smoking or by acquiescing to her demands thathe purchase cigarettes for her. As the Estate points out in its reply briefo n cross-appeal, "R.J. Reynolds created the zone of risk bymanufacturing a defective product. In essence, Defendant is arguingthat Jan created a zone of risk not by engaging in some course ofconduct, but by failing to change another person's course of conduct."

The Estate argues, and we agree, that R.J. Reynolds could not provefault on the part of Jan because it failed to present any evidence that hebreached a duty. The Estate cites section 314 of the Restatement(Second) of Torts, which provides, "[t]he fact that the actor realizes orshould realize that action on his part is necessary for another's aid orprotection does not of itself impose upon him a duty to take such action."Moreover, as the Estate argues, there is no statutory or common lawduty on the part of a husband to control the actions of a wife, nor isthere liability on the part of a husband for purchasing a product which isdefective.

3

A:3

R.J. Reynolds's argument concerning Jan's failure to protect his wifefrom the foreseeable risk of buying her cigarettes is analogous to a claimthat an adult who buys an alcoholic beverage for an alcoholic is liable forthe person's drunkenness. Just as one may legally provide alcohol toanother without breaching a duty, one may provide cigarettes to anotherwithout breaching a duty.2 See Bennett v. Godfather's Pizza, Inc., 570So. 2d 1351, 1353 (Fla. 3d DCA 1990) ("The rationale for not holding theestablishment liable is that 'the voluntary drinking of the alcohol, not thefurnishing of [the alcohol], [is] the proximate cause of the injury."'(alterations in original) (quoting Barnes v. B.K. Credit Serv., Inc., 461 So.2d 217, 219 (Fla. 1st DCA 1985))). We conclude that a person does nothave a legal duty to prevent his or her spouse from voluntarily smoking.Cf Madison v. Williamson, 241 S.W.3d 145, 154 (Texas App. 2007)("Nothing inherent in this husband-wife relationship gives rise to a factissue that either spouse had the right to control the other."); West v.Hilton Hotels Corp., 714 So. 2d 179, 182-83 (La. Ct. App. 1998) (husbanddoes not owe a special duty to his wife to prevent her intoxication or tosupervise her so as to prevent her from being harmed by the negligenceof a third person).

At trial, Jan acknowledged his lack of judgment and "fault" in buyingcigarettes for Laura. However, his testimony was an admission of moralresponsibility, not legal liability. R.J. Reynolds failed to establish Jan'sbreach of any legal duty. Consequently, the trial court erred when itincluded Jan Grossman on the verdict form.

Having determined that the trial court erred by placing Jan on theverdict form, we now address what remedy the Estate will be entitled toon remand. The Estate argues that it is entitled to a new trial ondamages and apportionment because the error - allowing R.J. Reynoldsto blame Jan for failing to prevent his wife from smoking an d forpurchasing cigarettes for her - infected the jury's determination ofdamages. According to the Estate, R.J. Reynolds presented Jan as acallous and uncaring spouse, and the jury responded by awarding asmall amount of damages for the loss of his wife. In arguing that thejury should include Jan as someone else to blame for Laura's death,counsel for R.J. Reynolds told the jury:

2 We acknowledge that there are certain factual scenarios under which a dutymay be created by the negligent furnishing of alcoholic beverages. E.g., §768.125, Fla. Stat. (1980). However, these duties were created by statute; theold common law rule was that no cause of action could be brought for thenegligent sale of alcoholic beverages. Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d1042, 1044-45 (Fla. 1991).

4

A:4

Jan was not an innocent bystander here. He supplied herwith cigarettes from the time they first met back in 1982, allthe way through her diagnosis, including the free cigarettesfrom the store, and the cigarettes he would buy at the IndianReservation.

He smoked in front of her until 1990, including when shewas pregnant with [the oldest child) and when she had quit,including when she went to hypnosis, including when shetried the plastic cigarette, including when she tried the gum.

He never discussed smoking with Laura. That's thetestimony. He never discussed it, let alone encouraged herto quit.

When a Fabre defendant is improperly included on the verdict form,the proper remedy may be an entirely new trial. See Abbott v. Dorleans,41 So. 3d 984, 987 (Fla. 4th DCA 2010). Appellate courts have refusedto speculate as to the prejudice resulting from the improper inclusion ofa Fabre defendant on a verdict form. Id.; see also Bogosian v. State FarmMut. Auto. Ins. Co., 817 So. 2d 968, 970-71 (Fla. 3d DCA 2002).

The Third District Court of Appeal has held that the improperinclusion of the personal representative of an estate on the verdict formconstitutes harmful error and warrants an entirely new trial. Probkevitzv. Velda Farms, LLC., 22 So. 3d 609, 615 (Fla. 3d DCA 2009), rev. denied,39 So. 3d 321 (2010). In Probkevitz, a fifteen-year-old girl died in anautomobile accident when the vehicle she was (unlawfully) drivingcollided with a truck owned and operated by Velda Farms. Id. at 611-12.Velda Farms filed a motion asserting that the mother, in her individualcapacity, was comparatively negligent and that her damages should bereduced based upon her negligence. Id. at 612. They argued that themother, who was asleep at home when the accident occurred, was toblame for her daughter's death. Id. The trial court ultimately allowedVelda Farms to argue that the mother's comparative negligence causedher daughter's death, and the court permitted Velda Farms to includethe mother on the verdict form. Id. The jury returned a verdict in favorof the defense. Id. at 614. The mother appealed, arguing that the trialcourt's ruling was baseless. Id.

The Third District Court of Appeal agreed with the mother andreversed. The court held that there was no evidence of the mother'snegligence in the record, and that the trial court erred when it allowed

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Velda Farms to argue that the mother's negligence was a cause of herdaughter's death. Id. at 615. The court remanded for an entirely newtrial, stating "[i}nadmissible evidence constitutes grounds for a new trialwhere the evidence likely results in jury confusion as to the issues andevidence considered." Id. (citing Goldman v. Bernstein, 906 So. 2d 1240,1241 (Fla. 4th DCA 2005)). "The evidence of [the mother's] negligence, aswell as a question of her negligence on the verdict form, allowed the juryto base their determination of [the driver's] negligence on facts andcircumstances irrelevant to his fault as a driver. This may haveimproperly confused the jury, influenced their thought process, andprejudiced [the mother]." Id.

Here, the Estate makes a compelling argument that Jan's inclusionon the verdict form prejudiced the jury against him. The jury hadalready expressed misgivings regarding Jan's procurement of cigarettesfor Laura,3 and his inclusion on the verdict form could have served as ajudicially endorsed vindication of their misgivings. Furthermore, the lowdamages awarded may indicate that the jury was prejudiced by evidenceand argument regarding Jan's negligence. As in Probkevitz, there is noway to know how the jury would have decided damages andapportionment had this issue not been injected into the trial.Accordingly, we reverse the final judgment and remand the case for anentirely new trial on all Phase II issues.

Affirmed in part, Reversed in part, and Remanded for proceedirLgsconsistent with this opinion.

CIKLIN and GERBER, JJ., concur.

Appeal and cross-appeal from the Circuit Court for the SeventeenthJudicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. CaseNo. 08-25828 CV 19.

Eric L. Lundt and Gordon James III of Sedgwick, Detert, Moran &Arnold LLP, Fort Lauderdale, and Charles Morse of Jones Day, New York,New York, and Stephanie E. Parker, John F. Yarber and John M. Walkerof Jones Day, Atlanta, Georgia, for appellant.

3 After Jan's testimony, a juror asked if "Mr. Grossman [felt} he enabled Laura'ssmoking behavior/habit?" and "[c]ould he have done more to encourage her toquit?" The question was objected to, and the objection was sustained.

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Bard D. Rockenbach of Burlington & Rockenbach, P.A., West PalmBeach, and Steven J. Hammer and Jonathan Gdanski of Schlesinger LawOffices, P.A., Fort Lauderdale, for appellee.

Not final until disposition of timely filed motion for rehearing.

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ATTORNEYS AT LAW

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Edc L Lundt, Esg.Phone: (954) 3514848

E-Mail: edc.lundt@sedgwicklaw.com

October 26, 2012

By UPS Overnight Delivery

Thomas D. Hall, ClerkFlorida Supreme Court500 South Duval StreetTallahassee, Florida 32399-1927

Re: R.J. Reynolds Tobacco Co. v. GrossmanCase No. SCl2-2155

Dear Mr. Hall:

We enclose for filing the Brief on Jurisdiction of Petitioner R.J. ReynoldsTobacco Company.

Thank you for your assistance.

Re etfully itte ,

FsRIC L DTFor the

cc: Bard D. Rockenbach, Esq.Jonathan R. Gdanski, Esq.

Enclosure