HARMLESS ERROR IN THE SECOND DISTRICT: HAS SPECIAL HAD AN IMPACT?
Appellate Practice Section
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Many predicted that the
new standard would
significantly impact
civil appeals in the
Second District.
T
he Second District
Court of Appeal
historically placed
the burden on the
appellant in a civil appeal to prove
“it is reasonably probable that
a result more favorable to the
appellant would have been reached
if the error had not been commit -
ted,” else any error would be
deemed harmless and the ruling
on appeal affirmed. 1 In November
2014, the Florida Supreme Court
decided Special v. West Boca Medical
Center, in which the Court shifted
the burden to the appellee as
“beneficiary of the error” to “prove
that there is no reasonable possi -
bility that the error complained of
contributed to the verdict.” 2 Many
9
(including myself) predicted that the
new standard would significantly
impact civil appeals in the Second
District, increasing the reversal
rate. 3 So, did it?
Apparently, no — not yet,
anyways. To date, the Second
DCA has cited Special only three
times in written opinions. In fact,
until this April, the Second DCA
had only cited Special once — in
a footnote, in dicta, noting that
Special did not apply retroactively
in that case. 4
Recently, the Second DCA issued
two more opinions citing Special.
In the first, the court held that
the trial court erred in excluding
certain evidence at trial, and that
the appellee had failed its burden
under Special to prove the error did
not contribute to the verdict. 5 In
the second, the court cited Special
without providing significant
analysis of the standard, stating
only that there was no reasonable
possibility any error that may have
occurred in closing argument
contributed to the verdict. 6
The Second DCA has also
addressed harmless error in two
other civil appeals since Special, but
without expressly referencing the new
standard. In the first opinion, the
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