Duffell v. South Walton Emergency Services, Inc., BH-122
| Decision Date | 26 January 1987 |
| Docket Number | No. BH-122,BH-122 |
| Citation | 501 So.2d 1352,12 Fla. L. Weekly 396 |
| Parties | 12 Fla. L. Weekly 396 Carol S. DUFFELL, Appellant, v. SOUTH WALTON EMERGENCY SERVICES, INC., a political subdivision of the State of Florida, Through its operation of the South Walton Emergency Services, Inc., Florida International Indemnity Co., Phillip A. Quade, Mrs. Phillip A. Quade and Allstate Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Walton County; Clyde B. Wells, judge.
David A. Simpson, of Anchors, Simpson & Foster, Fort Walton, for appellant.
Robert L. Crongeyer, of Beggs & Lane, Pensacola, for cross appellant/Florida International Indemnity Company.
Robert N. Heath, Jr. of Matthews, Reed, Bell & Heath, Pensacola for appellee/cross appellee South Walton Emergency Services, Inc., and Walton County.
Jeffrey C. Bassett of Barron, Redding, Hughes, Fite, Bassett & Fensom, P.A., Panama City, for appellee/Phillip A. Quade and Mrs. Phillip A. Quade.
Having reviewed the record and considered the briefs of the parties, we find no reversible error raised by appellant.
AFFIRMED.
In this personal injury action, Duffell appeals from a judgment entered pursuant to a jury verdict absolving appellees from any liability. She raises numerous points on appeal, two of which in my judgment require reversal and a remand of the case for new trial.
Appellant was injured when an ambulance, which she occupied in her capacity as an emergency medical technician and was not driving, swerved off a wet road while on an emergency mission and turned over. As a result of the accident she sustained a compression fracture of the T-9 vertebra, causing, according to a treating orthopedist, a fifteen percent impairment of the whole body.
The ambulance, owned by appellee Walton County and loaned by it to appellee South Walton Emergency Services (South Walton), was driven by Stephen Kay, who, like Duffell, was employed by South Walton. 1 The actual cause of the accident was factually disputed. Appellant and Kay contended that appellee Midori Quade, driving a yellow Thunderbird automobile ahead of the ambulance, pulled suddenly into the passing lane in front of the ambulance, while the latter vehicle, with its lights flashing and siren sounding, was attempting to pass other vehicles proceeding in the same direction. Appellee's unexpected maneuver required Kay to turn the vehicle sharply in order to avoid a collision, with the result that the ambulance went out of control and overturned, thereby causing the injuries suffered by appellant.
Mrs. Quade, on the other hand, denied that the car driven by her was the one responsible for the accident, stating that at the time of the accident she had been following in her own traffic lane another car driven by her husband, and, when her husband pulled his automobile off the right-side of the road, she did the same with hers. Her testimony suggested the possibility of another vehicle pulling in front of the ambulance, in that, she stated, for some time before and until the time she stopped her vehicle, she had been followed by a black, late model Toyota truck with a camper shell. She neither saw nor heard the ambulance coming, as her windows were closed and the defroster on; nor did she know of the accident until her husband told her of it.
Mrs. Quade's testimony was corroborated in part by that of another witness near the accident scene, Janice Fulton, who stated that just before the ambulance swerved from the road, she saw a camper truck which appeared to be out of the line of traffic. Ms. Fulton, however, admitted that she had been distracted shortly prior to the accident and therefore could not state with certainty what was its cause.
As the lower court properly instructed the jurors, there were two alternative issues of liability to be decided by them: Whether South Walton and Walton County, appellant's employers, were negligent in maintaining the ambulance by allowing it to proceed on an emergency mission, and, if so, whether such negligence was the legal cause of the injury; and second, whether Mrs. Quade was negligent in the operation of her automobile, and, if so, was her negligence the legal cause of plaintiff's injury. We can only surmise from the verdicts rendered in favor of all defendants that the jury concluded that some unnamed person was responsible for the accident in question.
Duffell's fourth point on appeal is that the admission of evidence before the jury of specific acts relating to appellant's use of non-prescribed drugs had little relevant value to the issues in dispute, and the court therefore erred in admitting evidence of the same. The appellees' response, which the lower court has apparently accepted, is that appellant's drug usage was admissible either because it was relevant to appellant's damage claims, or because appellant's conduct at trial injected the issue before the jury; therefore the point has been waived. I disagree as to both reasons advanced.
Prior to trial, appellant filed two motions in limine. The first sought to bar any mention of an incident, a month following the accident, involving appellant's forgery of a prescription for pain medication, which resulted in the filing of a criminal offense against her. The basis of the motion was that appellant had pled nolo contendere to the charge, adjudication of guilt was withheld and appellant placed on probation, thus no conviction resulted. The trial court granted the motion. 2 Appellant's second motion sought to forbid evidence relating to the revocations of appellant's practical nursing licenses on the ground that such evidence would be inflammatory to the jury and prejudicial to the appellant as plaintiff. Appellant's Alabama license had been revoked following an incident that occurred three years before her accident, involving appellant's theft of demerol, prescribed for a patient, at an Alabama hospital where appellant worked as a nurse. Her Florida license had been revoked due to (1) errors and omissions in the records of drugs that appellant as a nurse had the responsibility of administering to patients at a Florida hospital, and (2) her plea of nolo contendere to the forged prescription charge. The record-discrepancy incident at the Florida hospital occurred before the accident, while the event leading to appellant's criminal prosecution occurred shortly after it.
Appellees, the Quades, in opposition to the motions in limine, argued that evidence relating to the loss of the license was relevant both to appellant's claim for lost wages, as she could no longer return to nursing due to the revocation of her license and to her claim for loss of enjoyment of life, as evidence of what her life was like before the accident. They also maintained that the introduction of evidence relating to appellant's drug usage occurring before the suspension of her Florida nursing license would shed light on her need for excessive amounts of demerol in the hospital while recovering from her accidental injuries. Finally they urged that such evidence was material to the progress and course of appellant's treatment in that the medical evidence showed that appellant's doctors knew of and were concerned about her abuse of prescribed pain medicine, and that they had since stopped prescribing narcotic medicines for her.
Appellant's attorney answered that he had no objection to the defense commenting on anything contained in the hospital records relating to the treatment of her accidental injuries, including her use of prescription drugs given to her for relief of pain, but that he did object to any mention of her use of drugs following her discharge from the hospital, because her subsequent drug problems related to the subject matter of the motions in limine. The court ruled that if appellant testified that she was unable to return to work as a nurse or emergency medical technician because of her injuries, it would permit defense questions regarding the loss of her license. Appellant then dropped her damage claims for loss of earning capacity and loss of wages, retaining, however, her claims for pain and suffering and loss of capacity to enjoy life, as well as medical expenses incurred by reason of her accidental injuries.
Notwithstanding the above rulings, the trial judge later held, prior to opening statements, and over appellant's objection, that the Quades' defense counsel could refer to appellant's drug abuse problems existing before her injury, but not to the forged prescription. The specific reason given by the court for the admission of such evidence was that it was relevant in regard to her recovery, that "people who get addicted to drugs don't ever recover." Appellant's counsel unsuccessfully contended that the requested evidence related to the grounds stated in her motions in limine seeking to bar such evidence, in that the basis of one of the doctor's testimony concerning appellant's drug abuse would be his knowledge that appellant had forged prescriptions for drugs, while another doctor would base his knowledge on the fact that appellant's license had been revoked.
After the court had ruled that the Quades' attorney could mention in his opening statements to the jury appellant's "drug abuse", appellant's attorney, during his opening comments, advised the jury that it would have before it medical records of appellant's stay in the hospital, which would refer to her suffering great pain and discomfort, and her need for medication in order to relieve the same. Appellant's attorney also alluded to Duffell's use of prescription drugs, given to her before the accident for the treatment of both her headaches and diabetes, and asked the jury to ignore any such evidence as irrelevant to the issue of...
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...somehow induced the specific ruling by her affirmative action or inactivity. Duffell v. South Walton Emergency Services, Inc., 501 So.2d 1352, 1357 (Fla. 1st DCA 1987)(Ervin, J., concurring/dissenting). Therefore, the final judgment is reversed and the case remanded for a new 1 This trial w......
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