Cuozzo v. Ronan & Kunzl, Inc., 83-1058

• Decision Date: 08 August 1984
• Docket Number: No. 83-1058,83-1058
• Citation: 453 So.2d 902
• Court: Florida District Court of Appeals
• Parties: Armand CUOZZO, Appellant/Cross Appellee, v. RONAN & KUNZL, INC., Appellee/Cross Appellant, and Piggly Wiggly Delray Beach, Inc., Travelers Insurance Company, and Pittsburgh Plate Glass Company, Appellees.

Page 902

453 So.2d 902

Armand CUOZZO, Appellant/Cross Appellee, v. RONAN & KUNZL, INC., Appellee/Cross Appellant, and Piggly Wiggly Delray Beach, Inc., Travelers Insurance Company, and Pittsburgh Plate Glass Company, Appellees.

No. 83-1058.

District Court of Appeal of Florida,

Fourth District.

Aug. 8, 1984.

Barbara J. Compiani of Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellant/cross appellee.

David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for appellee/cross appellant, Ronan & Kunzl, Inc.

Jane Kreusler-Walsh and Larry Klein and Peterson & Fogarty, West Palm Beach, for appellees, Piggly Wiggly and Travelers Ins. Co.

Frank G. Cibula, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellee, Pittsburgh Plate Glass Co.

DELL, Judge.

Armand Cuozzo appeals from an order denying his motion for new trial or additur.

Appellant suffered personal injuries when an electronically controlled entry door in Piggly Wiggly's store struck him. Appellant brought suit against appellees Piggly Wiggly Delray Beach, Inc., Travelers Insurance Company, Ronan & Kunzl, Inc., and Pittsburgh Plate Glass Company. Each appellee alleged comparative negligence as an affirmative defense. Appellant presented the only evidence relating to the manner in which he approached and entered the door. The jury found Piggly Wiggly guilty of negligence and found appellant had contributed to his injuries to the extent of 35%. The jury found no negligence on the part of Ronan & Kunzl, Inc., or Pittsburgh Plate Glass Company.

Appellant raises four points on appeal. He contends the trial court erred when it denied his motion for directed verdict on comparative negligence, denied his motion for new trial or additur, in prohibiting appellant from commenting on the defendant's failure to call an independent medical expert and in entering cost judgments against appellant for Ronan & Kunzl and Pittsburgh Plate Glass Company. Appellees Ronan & Kunzl filed a notice of cross appeal but have not presented any argument.

We agree with appellant's contention that the trial court erred when it denied a directed verdict on the issue of comparative negligence. Having alleged comparative negligence, an affirmative defense, appellees bore the burden of proof. Hough v. Menses, 95 So.2d 410 (Fla.1957). Where no evidence exists tending to prove comparative negligence, the issue should not be submitted to the jury. Borenstein v. Raskin, 401 So.2d 884 (Fla. 3d DCA 1981). Appellant's testimony showed that he approached and entered the door in a manner consistent with its proper use. Appellees failed to introduce any evidence to rebut appellant's testimony or to establish that he failed to exercise reasonable care when he entered the door. Therefore we hold that the trial court erred when it instructed the jury on comparative negligence and when it reduced the amount of the plaintiff's judgment from $80,000 to $52,000.

Appellant also argues that he should receive either a new trial or additur, because the jury's award failed to cover his out-of-pocket expenses and was, therefore, shockingly low. We disagree. Appellant proved that he incurred $32,275 in medical bills, lost $13,500 salary, and estimated future medical bills at $24,000 and future salary loss at $13,500, for a total of $84,000 damages. The jury awarded $80,000. However, the jury had before it not only appellant's proof of damages, but also evidence tending to prove that much of these damages, particularly those for psychiatric care, was attributable to pre-existing conditions. Appellees also adduced testimony that appellant, in the past, had exaggerated his symptoms. We cannot say that the jury, whose function is to weigh conflicting evidence, returned a verdict unsupported by the evidence.

We find no error in the trial court's refusal to permit appellant's counsel to comment on appellees' failure to call an independent medical expert. The record demonstrates that appellant failed to testify that he had been examined at appellees insistance, or otherwise introduce evidence necessary as a predicate to such an argument.

We find no merit in appellant's remaining point on appeal. We dismiss Ronan & Kunzl, Inc.'s cross appeal for its failure to submit argument in support thereof.

Accordingly, we reverse that part of the final judgment awarding damages in the amount...