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 law, it is impossible for an appellate court to hold the trial court’s action in applying the previous case law to have been palpable error.  A new decision should not be applied retroactively unless the issue was properly preserved for appellate review.”); Smith v. Homestead Distrib. Co., 629 S.W.2d 454, 456 (Mo. Ct. App. 1981) (“[P]laintiffs, by failing to object to the request for joinder, via a motion to dismiss the third-party petitions, by failing to object to the joinder at the time of trial, and by failing to raise the issue in their motion for new trial, waived the right to now complain of the alleged improper joinder” despite a subsequent change in the law).

But there are jurisdictions where a party does not waive the issue on appeal by failing to object during trial, particularly when a case remains pending in the trial court or is on direct appeal.  See, e.g., Tardi v. Henry, 571 N.E. 2d 1020, 1038-39 (Ill. App. Ct. 1991).

Accordingly, counsel should  know what the jurisdiction says about waiving the right to raise an issue on appeal after a change in the law, keeping in mind that it is always the safest course to assert an objection if you are aware that an issue is under consideration.