The Week In Torts – Cases from January 17, 2025

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FLORIDA LAW WEEKLY
VOLUME 50, NUMBER 2
JANUARY 17, 2025
TRIAL COURT ABUSED DISCRETION WHEN IT FOUND THAT A VERDICT FINDING THERE WAS NO NEGLIGENCE ON THE PART OF THE DEFENDANT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE — THE EVIDENCE WAS CONFLICTING AND THE JURY RESOLVED IT
Angeles-Delgado v. Benitez, 50 Fla. L. Weekly D130 (Fla. 3rd DCA Jan. 8, 2025):
The plaintiff sued, asserting that the driver had collided with her while she was riding a bicycle causing her permanent injury. The defendants denied liability.
At trial, the parties’ experts disagreed about the method used to measure the tire skid marks, which resulted in differing testimony as to whether the driver was speeding and whether she could have avoided hitting the plaintiff. The jury reached a verdict, finding no negligence. It did not reach the issue of damages.
The plaintiff successfully moved for a new trial arguing that the verdict was against the manifest weight of the evidence. The trial court expressed its concern regarding the driver’s testimony that she had not seen the plaintiff before hitting her because both parties’ experts testified that she had to have seen her due to her braking before impact. The trial court was also concerned that the jury had requested the police report during deliberations. However, the court did not state the reason for that concern.
Despite the trial court’s concerns, the appellate court found that there was conflicting testimony between the parties’ experts regarding the method used to measure the skid marks, and also as to whether the defendant was speeding and whether she could have avoided the accident.
“For a verdict to be against the manifest weight of the evidence to warrant a new trial, the evidence must be clear, obvious, and indisputable; where there is conflicting evidence, the weight to be given that evidence is within the province of the jury.”
The driver’s expert claimed that the driver had only a quarter of a second to brake and could not have avoided the impact, versus the plaintiff’s expert, who testified that the driver had anywhere from 1.3 to 2.9 seconds to brake and could have avoided the impact. Because the jury properly decided the conflicting testimony, the trial court erred in granting a new trial, and the appellate court reversed with instructions to reinstate the defense verdict.
TRIAL COURT ERRED IN GRANTING NEW TRIAL ON THE GROUND THAT THE JURY’S VERDICT FINDING THE PLAINTIFF DID NOT SUFFER A PERMANENT INJURY, WAS CONTRARY TO UNDISPUTED EVIDENCE – REMAND FOR TRIAL COURT TO RULE ON OTHER GROUNDS RAISED IN MOTION FOR NEW TRIAL
Corzo v. Montero, 50 Fla. L. Weekly D134 (Fla. 3rd DCA Jan. 8, 2025):
The defendant driver rear-ended the plaintiff’s vehicle on a rainy day. The plaintiff made no complaints of injuries at the scene and received no medical care on that day.
Two days after the accident, the plaintiff sought medical treatment and presented to a clinic with complaints of pain in both knees, both shoulders, his neck, and back. Ultimately, the plaintiff had 21 physical therapy sessions focused on his neck and back. The pain in his neck, back, and left shoulder resolved after the treatment.
Radiologists noted several degenerative findings on the plaintiff’s x-ray. For decades, the plaintiff had performed hard physical labor in construction, including repetitive movements of lifting and kneeling.
Six months after the accident the plaintiff saw a physician who diagnosed the plaintiff with tears in his knees and a rotator cuff tear in his right shoulder. The physician performed an arthroscopic right knee surgery. During the procedure, he noted a grade 4 chondromalacia which he conceded was not related to the accident. He also recommended the plaintiff undergo a rotator cuff repair and left knee arthroscopy.
After the surgery, the plaintiff returned to physical therapy and periodically visited the physician between 2017 and 2019.
In 2017, the plaintiff sued the defendants for personal injuries. The defendants admitted fault but contested causation, permanency, and damages.
The jury found that the defendant was the legal cause of the plaintiff’s injuries and further found that the plaintiff sustained a permanent injury, but awarded only $30,000 in past pain and suffering. The plaintiff appealed and the court reversed and remanded for a new trial (the court cited the prior case, but did not state the reasons why).
During the second trial, the jury found that while the defendant was the legal cause of the plaintiff’s injuries, the plaintiff had not suffered a permanent injury, awarding no non-economic damages.
The plaintiff moved for a new trial asserting that the verdict was inadequate because: (1) it was undisputed that he sustained a permanent injury; (2) the trial court erred by rejecting his proposed verdict question on permanency, which included “whole or in part” language; and (3) the jury’s finding of no permanent injury was contrary to the greater weight of the evidence.
The trial court concluded that while causation was disputed, the issue of permanency was not and granted the new trial.
The appellate court disagreed. It found that the record belied the finding that the evidence of permanent injury was “undisputed, unimpeached, and otherwise not subject to question” based on expert medical testimony.
Throughout the trial, the jury heard conflicting evidence on whether the plaintiff suffered a permanent injury because of the accident. The doctors provided vastly different opinions.
Instead of focusing on the entirety of the evidence and testimony, the appellate court found the trial judge focused only on an isolated portion of the testimony where the defendant’s physician agreed that the general types of injuries the plaintiff had sustained were permanent in nature.
However, viewing that testimony in a vacuum led the trial court astray. The entire record demonstrated conflict in the evidence concerning the issue of permanency. It is well settled that non-economic damages cannot be recovered in automobile cases without a showing of permanent injury.
Because the findings in the trial court’s order were not supported by the record, the appellate court found the trial court abused its discretion and reversed the order granting the new trial. It did remand, however, for the trial court to rule on the other grounds set forth in the motion.
COURT REVERSES DISMISSAL OF A PLAINTIFF’S CLAIM FOR FRAUD ON THE COURT
Zufi v. Stockton, 50 Fla. L. Weekly D165 (Fla. 4th DCA Jan. 8, 2025):
In this automobile accident case, the defendants propounded an interrogatory asking the plaintiff whether she had been involved in accidents “of any kind” resulting in injury. The plaintiff responded “none.”
Two years after the accident, and five months before trial, the defendants deposed the plaintiff When defense counsel asked her if she had been involved in any prior car accidents, she testified that a car had hit her in Broward County but she could not recall the details, remembering only very little damage to the vehicle and none to the participants.
After the deposition, defense counsel asked the plaintiff’s attorney for more information about that accident. Plaintiff’s counsel discovered an accident report for a Palm Beach County accident involving the plaintiff in 2020. The defendants also uncovered the accident report for the Broward County accident which had also occurred in 2020. The damage reports from the insurance company showed $728 in damage to the car.
The defendants moved to dismiss the case for fraud on the court.
The plaintiffs argued that the defendants’ discovery request had been imprecise. The trial court conducted a hearing, but no witnesses were called to testify. There was argument about the questions that had been asked and the plaintiffs’ responses in the CME.
The court advised that dismissal for fraud on the court is a severe remedy that should only be applied in the most extreme circumstances. It is the moving party’s burden to establish by clear and convincing evidence that the non-moving party has engaged in fraudulent conduct warranting dismissal.
Dismissal is proper when a party can demonstrate clearly and convincingly that a party has sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense. The court must consider a proper mix of factors, carefully balancing a policy favoring adjudication on the merits with the competing policy to maintain the integrity of the judicial system.
In balancing the two policies, trial courts must be careful to keep in mind that a variety of misconduct falls short of the rigors of the fraud-on-the-court test.
The court explained that as a preliminary matter, if a motion to dismiss for fraud would not survive a motion for summary judgment due to questions of disputed material facts, the trial court should presume the matter is not subject to dismissal.
Also, the determination of whether clear and convincing evidence of an unconscionable scheme exists almost always requires an evidentiary hearing.
The court evaluated the trial judge’s findings but concluded that they were not supported by the competent substantial evidence needed to clearly and convincingly prove a scheme to defraud. The court found that the trial judge should not have deprived the plaintiff of the right to a jury trial by dismissing the case for fraud on the court. Instead, it should have considered other options such as extending discovery deadlines and the trial date as it deemed appropriate.
TRIAL COURT ERRED BY ENTERING ORDERS STRIKING DEFENDANT’S ANSWER AND COUNTERCLAIMS AND DEFAULTING THE DEFENDANT BASED ON DEFENSE COUNSEL’S FAILURE TO APPEAR AT TWO CASE MANAGEMENT CONFERENCES (UNDER THE OLD CIVIL RULES); NOTHING IN THE RECORD INDICATED THAT THE TRIAL COURT CONSIDERED THE KOZEL FACTORS AND WHETHER DEFENDANT’S CONDUCT WAS “WILLFUL AND CONTUMACIOUS”
Burgess v. Campbell, 50 Fla. L. Weekly D153 (Fla. 4th DCA Jan. 8, 2025):
Defense counsel failed to appear at two case management conferences and failed to file witness and exhibit lists timely. The trial court entered an order striking the defendant’s affirmative defenses and counterclaims and entering a default against the defendant based on these failings.
However, the trial court did not consider the Kozel factors. Failure to show consideration of those factors (at least under the old Civil rules) was a basis for remand, and had the lower court looked at those factors, it would not have imposed such a harsh punishment.
The law at the time permitted dismissal upon a showing that the party’s conduct was “willful and contumacious.” However, before a court may dismiss the cause as a sanction, it must consider the six factors delineated in Kozel and set forth explicit findings of fact in the order before imposing the sanction of dismissal. Upon considering those factors, if a sanction less severe than dismissal with prejudice would be a viable alternative, the trial court should employ that alternative.
Nothing in the record showed that the trial court considered the Kozel factors or found that the defendant’s conduct was willful and contumacious.
The appellate court remanded for a consideration of those factors and an evaluation of the defendant’s conduct, noting that it had no opinion on its belief as to whether the conduct met the test for “dismissal as a sanction” or not.