This week, Florida’s Second District Court of Appeal confirmed its test for harmful error in civil cases: whether it is reasonably probable that the verdict would have been different but for the error. In the Second District, the appellant has the burden of showing harmful error. This standard stands in stark contrast to that applied in the Fourth District under Special v. Beaux, 79 So. 3d 755, 757 (Fla. 4th DCA 2001), which places the burden on the beneficiary of error to show "that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict."
The Second District joins the Third District in certifying conflict with Special. Thus far, the First and Fifth Districts have taken the approach of applying both standards in their cases. Specialis currently under review by the Florida Supreme Court. See Special v. W. Boca Med. Ctr., 90 So. 3d 273 (Fla. 2012).
To read the Second District’s opinion, click the link.