Cowen v. Thornton
| Decision Date | 14 April 1993 |
| Docket Number | No. 92-01573,92-01573 |
| Citation | 621 So.2d 684 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Weekly D995 James S. COWEN, Appellant/Cross-Appellee, v. Todd M. THORNTON, Appellee/Cross-Appellant. |
Warren J. Knaust of Knaust & Valente, P.A., St. Petersburg, for appellant/cross-appellee.
Stephen K. Stuart and Frank A. Miller of Stuart & Strickland, P.A., Tampa, for appellee/cross-appellant.
James S. Cowen appeals a final judgment entered for the defendant, Todd M. Thornton, on his claim for personal injury. We reverse and order a new trial on all issues.
Cowen was a treatment supervisor at Carlton Manor, a residential treatment facility for moderately disturbed young males. The facility, which contained no more than eight children at a time, housed the children from Sunday evening until Friday evening when the children were permitted to spend weekends at their homes. Cowen's complaint alleged that his lower back was injured in attempts to restrain Thornton, a fifteen-year-old facility resident, who was banging his head on a wall in a time-out room. Cowen's wife also filed an action for loss of consortium; however, she has dismissed her appeal. Thornton denied negligence, claimed Cowen was comparatively negligent or assumed the risk of injury, and argued that he owed Cowen either no duty or a lesser duty to refrain from the conduct which allegedly resulted in the injury.
The matter proceeded to a trial before a jury. The medical experts for both parties testified that Cowen was injured permanently. The only divergence in the expert Cowen's uncontroverted medical expenses totaled $28,260.77. Cowen presented an economist who testified that Cowen's past economic loss was $84,214, not including medical expenses. The economist further testified that Cowen's future medical expenses, reduced to present value, would be from $147,853 to $187,137. The economist found that Cowen's future loss of earnings and earning capacity was from $619,263 to $645,167. Thornton's evidence did not rebut any of these amounts nor did it challenge Cowen's evidence concerning pain and suffering. Notwithstanding this evidence, the jury awarded zero damages.
medical testimony related to causation. Cowen's treating orthopedic surgeon testified that the incident with Thornton at the facility caused Cowen's injury. The defendant's expert, a neurologist, testified that it was his opinion that Cowen's injury was not caused by the Thornton incident but from prior incidents unrelated to Thornton.
The jury returned the following verdict:
VERDICT
We, the jury, find as follows:
1. Was there negligence on the part of the Defendant, Todd Thornton, which
was a legal cause of damage to the Plaintiff, James S. Cowen.
-------- --------
If your answer to question 1 is NO, your verdict is for defendant. Do not
answer any of the other questions on this form. The foreman must date and
sign this form and return it to the courtroom. If your answer to question
1 is YES, answer question 2.
2. Was there negligence on the part of Plaintiff, James S. Cowen, which was a
contributing legal cause of the damage complained of.
YES X NO
-------- --------
If your answer to question 1 is NO, do not answer question 3. Answer
questions 4, 5, 6, and 7. If your answer to question 2 is YES, answer the
remaining questions.
3. What is the percentage of negligence that was a legal cause of plaintiff's
damage on the part of each party?
Defendant 25%
Plaintiff 75%
The total must equal 100%
By answering the following questions you will determine the damages, if
any, that James Cowen and Teresa Cowen sustained as a result of the
incident in question. Do not reduce any amount because of the negligence
of the plaintiff. The court will make that computation.
4. What is the amount of any damages sustained for medical expenses and lost
earnings or earning ability in the past?
$ 0
--------
5. What is the amount of any future damages for medical expenses and lost
earning ability to be sustained in future years?
Cowen filed motions for additur and for new trial. The trial court denied the motions and entered final judgment in favor of Thornton. We conclude that the failure to grant a new trial was error.
The proper method to challenge an inadequate verdict is to file a motion for new trial. See, e.g., McCloud v. Sherman Mobile Concrete Co., 579 So.2d 773 (Fla. 2d DCA 1991); State Farm Mut. Ins. Co. v. Howard, 458 So.2d 874 (Fla. 2d DCA 1984). Generally a plaintiff cannot be awarded zero damages when he has suffered some damages from the negligence of the defendant. McCloud; Howard. When a damage award is clearly inadequate and the issue of liability was contested, it gives rise to a suspicion that the jury may have compromised its verdict. Watson v. Builders Square, Inc., 563 So.2d 721 (Fla. 4th DCA 1990).
In the instant case, Thornton did not challenge the amount of damages but only the fact that Thornton caused them. The jury, however, specifically found that Thornton's actions did cause Cowen's damages. Based upon this evidence and the jury verdict, we are compelled to grant a new trial for Cowen. Because the liability issue was vigorously contested, the new trial must be on the issues of liability and damages. See Williams v. Ragsdale, 500 So.2d 314 (Fla. 2d DCA 1986) (), review denied, 506 So.2d 1042 (Fla.1987).
Thornton argues that Cowen failed to preserve this error because Cowen did not bring the inconsistency of the verdict to the trial court's attention before the jury was discharged. This court, however, has ruled previously that there is no waiver of this issue when the plaintiff has filed a motion for new trial which challenged a zero verdict after a jury found liability. Surety Mortgage, Inc. v. Equitable Mortgage Resources, Inc., 534 So.2d 780 (Fla. 2d DCA 1988).
Thornton has filed a cross-appeal, contesting the trial court's denial of his motion for directed verdict. Thornton, relying on Anicet v. Gant, 580 So.2d 273 (Fla. 3d DCA), review denied, 591 So.2d 181 (Fla.1991), argued that he owed Cowen no recognizable duty to refrain from the conduct which allegedly caused Cowen's injury. 1 In Anicet, a patient was committed involuntarily to a state hospital, manifesting behavior including an inability to control himself from acts of violence which included throwing rocks, chairs, and other objects at nearby persons. While there, the patient injured Gant, a hospital attendant. The third district framed the issue as "whether a violently insane person confined to a mental institution is liable to one of his attendants for injuries caused by his violent act." Anicet, 580 So.2d at 274. The court stated: "[W]e conclude that no duty to refrain from violent conduct arises on the part of a person who has no capacity to control it to one who is specifically employed to do just that." Anicet, 580 So.2d at 277.
This case is distinguishable on its facts from Anicet. First, the evidence viewed in the light most favorable to Cowen, 2 did not show that Thornton was a violently insane person or that he lacked the capacity to control his violent behavior. Cowen described Thornton's problems as passive/aggressive behavior,...
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