That was worth WAY more!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 41

OCTOBER 11, 2024

COURT AFFIRMS TRIAL COURT’S ADDITUR AND DIRECTED VERDICT ENTERED FOR PLAINTIFF

USAA CAS. INS. Co. v Deehl, 49 Fla. L. Weekly D1977 (Fla. 3rd DCA Oct. 30, 2024):

A couple was riding bicycles near the entrance of a state park. A phantom vehicle, obstructed by a large sign to the park, exited the park without stopping for the flashing red traffic light. The plaintiff’s girlfriend, who was ahead of him, swerved into his path to avoid the phantom vehicle. The man attempted to stop, but his front tire collided with her rear tire causing him to fall and sustain a serious and permanent ankle injury necessitating extensive medical attention.

At trial, the parties stipulated that the incident was governed by a flashing red and yellow traffic light and that the plaintiff was riding his bike properly in a marked bicycle lane. His girlfriend as the lead cyclist was 5 to 10 feet ahead, and they had the legal right of way. The evidence showed that as they approached the intersection, the phantom vehicle suddenly came into view and exited without deferring to the flashing light or to the bicyclists.

The plaintiff introduced a bicycle safety and operation expert who testified that the plaintiff was riding his bicycle appropriately, and that an emergency situation caused the crash. The UM carrier did not present any evidence to contradict that testimony, simply arguing that, as the rear bicyclist, the plaintiff should have been able to stop in time to avoid the collision.

The plaintiff’s medical treatment was extensive, and after six years of physical therapy and three surgeries, the plaintiff developed a significant limp. The evidence showed that he continues to experience pain and inflammation and suffers from post-traumatic arthritis. His entire demeanor and outlook on life has changed.

The UM carrier did not introduce any evidence to contradict the medical evidence presented by the plaintiff. During closing, the plaintiff suggested a non-economic damage award in the range of 2 to 4 million dollars.

The jury awarded damages totaling $500,000 ($250,000 for future economic damages, $125,000 for past non-economic damages and $125,000 for future non-economic damages. It apportioned 30% of the fault to the plaintiff and 70% to the unknown driver.

Post-trial, the plaintiff renewed his motion for directed verdict as to his comparative fault, which the trial court granted. He also moved for additur on the non-economic damage award, which the trial court also granted. The UM carrier objected to the additur, and the trial court ordered a new trial on non-economic damages only.

The Third District affirmed both trial court rulings. It noted that the trial court issued a well-reasoned order issued after consideration of the facts and circumstances, concluding that the low verdict amounts awarded shocked the conscience of the court and were clearly inadequate, because there was no conflicting or contradictory evidence. Because reasonable people could differ as to the propriety of the action taken by the trial court as expressed in its 11-page order the court affirmed.

As to the plaintiff’s comparative fault, the trial court properly granted judgment notwithstanding the verdict in favor of the plaintiff. The uncontroverted evidence and expert testimony established that the plaintiff was not at fault and had conducted himself according to the law.

Finally, while the UM carrier had sought a motion for summary judgment on the rear-end presumption against the plaintiff and cross-appealed on its denial, the court also affirmed the denial, refusing to find the plaintiff responsible for running into the rear of his girlfriend’s bike under the circumstances.

NO ERROR IN DISMISSING COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CLAIM WHEN PLAINTIFF FAILED TO ALLEGE THAT HE WAS PRESENT WHEN HIS DOG WAS SHOT –WHILE OWNERS MAY FEEL A DEEP ATTACHMENT TOWARDS THEIR DOMESTICATED PETS, THE LAW CONSIDERS THEM TO BE PERSONAL PROPERTY

Buchanan v. Miami-Dade County, 49 Fla. L. Weekly D1980 (Fla. 3rd DCA Oct. 30, 2024):

The issue on appeal was whether a man could seek damages for the intentional infliction of emotional distress that he suffered when Miami-Dade County police officers shot and killed his dog.

The trial court dismissed the complaint with prejudice for failing to state such a claim, because the plaintiff failed to allege that he was present when his dog was shot.

The plaintiff asserted that the trial court erred in dismissing his claim because his case concerned unique considerations that apply to cases concerning dead bodies, and thus he did not have to witness the incident to state a claim.

On appeal, the plaintiff did not challenge the general proposition that in order to state a claim for intentional infliction of emotional distress based on emotional distress, a victim must be present when the alleged extreme and outrageous conduct occurs.

Instead, the plaintiff contended that the fact that he was not present when the dog was shot and killed was not dispositive of his claim, based on the exception to the presence requirement for conduct involving the display of pictures of dead bodies.

The court rejected that argument finding there was no law to support the analogy. Underpinning its conclusion was the well-established principle that despite the deep attachment owners feel towards their domestic pets, Florida law still views animals as personal property.

To the extent that the plaintiff argued that to state a claim for the intentional infliction of emotional distress, a pet owner need not be present when the defendant’s extreme and outrageous conduct for the pet occurred is also misplaced.

In the case the plaintiff relied on, the Florida Supreme Court held that an action for a willful and malicious killing of a dog did not limit the owner’s damages to the market value of the dog but could include the owner’s mental suffering.

That case did not concern itself, however, with the independent tort of intentional social emotional distress, but rather addressed a claim for the malicious killing of a pet.

In any event, that case could not stand for the proposition that a dog’s death need not be witnessed by its owner to state a claim for intentional infliction because the owner in that case was present.

PROPERTY OWNER ENTITLED TO A DIRECTED VERDICT IN A PREMISES SUIT ALLEGING THE PLAINTIFF FELL DUE TO AN UNEVEN SLOPE

Ecker Realty Corp v. Strazzeri, 49 Fla. L. Weekly D1985 (Fla. 4th DCA Oct. 2, 2024):

The plaintiff worked at a real estate company in an office complex where she fell. She had worked there for four years. The plaintiff had traversed the subject ramp where she fell hundreds of times.

On the day she fell the plaintiff wore wedge shoes which had a 2.5 to 3-inch lift. As she walked down the ramp her leg twisted and broke.

The plaintiff introduced expert testimony of an architect who said the ramp contained an inconsistent slope. The expert said that the ramp was steeper than general practice and code allowed.

The jury found the defendant was 70% responsible for the plaintiff’s injuries. The defendant renewed its motion for directed verdict which the trial court denied.

On appeal, the defendant argued that the plaintiff had failed to prove that it had actual or constructive knowledge that the ramp was dangerous. It argued that the plaintiff had not presented any evidence about the specifics of her fall other than she was walking and fell. The evidence  showed she had worn the same shoes to work on other days, and that she had walked up and down the ramp hundreds of times.

Additionally, the record showed that the defendant paid a board-certified contractor to install the ramp, and it had passed multiple inspections. No one had fallen on it in the past.

In short, because the plaintiff failed to present any evidence that the defendant had actual or constructive knowledge of a dangerous condition or evidence of negligent maintenance the trial court should have granted the defendant’s motion for directed verdict.