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Closing Arguments Are Not Evidence

In the Florida trial system closing arguments are a summation which provides the respective attorneys of the parties an opportunity to reiterate the important arguments for the trier of fact. A closing argument occurs after the presentation of evidence and may not contain any new information or evidence and may only use evidence introduced at trial.

In a recent slip and fall action it appears the trial court reached its conclusion based on a defense counsel’s closing argument. In the case of Bongiorno v. Americorp, Inc., So.3d 40 FLW D760 (Fla. 5th DCA 3-27-2015) the trial court erred in holding that the plaintiff was fifty percent comparatively negligent in causing her fall by wearing high-heeled shoes.

After the trial court entered its ruling of comparative fault the plaintiff appealed to the 5th District Court of Appeal. The appellate court held that there were no facts of record to support the finding that the plaintiff was negligent in wearing the high heels. The appellate court went on to hold that apparently the trial judge made the ruling based on the defense counsels closing argument which was insufficient to sustain the defendant’s burden of proving that the plaintiff created a foreseeable zone of risk for herself.

It will be interesting to follow the status of the case once it returns to the trial level. In most instances the trier of fact is the jury but in this instance the case was tried as a bench trial and before the judge. On return the trial judge will be required to follow the evidence code and not allow a closing argument to serve as evidence and rather be limited to only the evidence placed on the record during the trial.

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