Greene v. Flewelling, 78-78

• Decision Date: 15 December 1978
• Docket Number: No. 78-78,78-78
• Citation: 366 So.2d 777
• Parties: Joseph GREENE, Appellant, v. Patsy J. FLEWELLING et al., Appellees.
• Court: Florida District Court of Appeals

Page 777

366 So.2d 777

Joseph GREENE, Appellant, v. Patsy J. FLEWELLING et al., Appellees.

No. 78-78.

District Court of Appeal of Florida, Second District.

Dec. 15, 1978.

Rehearing Denied Jan. 29, 1979.

Thomas F. Icard, Jr. and Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.

Lynn H. Groseclose and Kingswood Sprott, Jr. of Sprott & Groseclose, Lakeland, for appellees.

SCHEB, Judge.

Appellant Greene obtained a favorable jury verdict for damages in an action arising out of an automobile accident. The trial court set aside the jury verdict on the grounds that it was not supported by competent, substantial evidence. This appeal by Greene ensued. We affirm.

On October 24, 1976, a car driven by appellee Patsy Flewelling collided with a Volkswagen bus driven by appellant Greene. A passenger in Greene's bus sued the Flewellings, who in turn filed a third-party complaint against Greene. Greene then filed a third-party counterclaim against the Flewellings seeking to recover for his personal injuries.

Greene's passenger settled with the Flewellings, and the cause went to trial on the Flewellings' claim against Greene and Greene's counterclaim against them. The jury found Mrs. Flewelling 100% Negligent, and awarded Greene $20,600. Upon motion by the Flewellings the court set aside the jury's verdict and entered judgment in favor of Greene for $550, the stipulated amount of his property damage.

On this appeal Greene argues that the trial court erred in overturning the jury's verdict. He also contends that the trial judge erred in refusing to give a jury instruction concerning a "serious, nonpermanent injury." ¹ Since both of these contentions depend to a large extent upon the evidence presented at trial, it is necessary that we review the testimony in some detail.

To support his claim Greene presented his own testimony, that of his wife, and the deposition of a physician who had examined him. First to testify was Greene's wife. She said that her husband had been released from the hospital several hours after the accident, but that he was in considerable pain from various bruises and lacerations for about a month. She said she first discovered that her husband could not smell several days after the accident when she came home and detected a pungent odor of gas in the house. Mrs. Greene asked her husband if he could smell anything and he said he could not. She then checked the stove and found the pilot light was out and that it was emitting gas. Alarmed, she presented a number of household substances to her husband and asked him if he could smell them. He said he could not. Mrs. Greene further testified that her husband subsequently informed her that he could not taste either. She noted that his condition had not improved as of the time of trial, slightly over a year after the accident.

The deposition of Dr. DeWeese, a neurosurgeon, was next introduced into evidence. The doctor said that Greene had been referred to him about a month after the accident because of his claimed loss of smell. He said that Greene had told him he could smell before the accident, but could not afterwards. ² Dr. DeWeese asked Greene to smell various pungent substances around his office, but Greene reported that he could not smell any of them. The doctor explained that when a person loses his sense of smell it usually means the olfactory nerves have been damaged in some manner; yet, in his opinion Greene had not sustained the type of injury that would damage the olfactory nerves. Dr. DeWeese said he had no way of predicting when or if Greene would regain the ability to smell and taste, and concluded that Greene suffered from "a subjective complaint that can't be corroborated with objective findings."

Greene testified that he could not recall anything about the accident itself, or how he received his injuries. He said he remembered very little until two days after the accident, at which time he recalled being in pain from rib, neck, head, and back injuries. He said he had never had any trouble with his senses of smell and taste before the accident. He corroborated the incident his wife had related about his not being able to smell gas from the stove, and referred to various other instances when he had not been able to smell or taste.

At the conclusion of the evidence the Flewellings moved for a directed verdict. The trial judge, while expressing considerable doubt as to whether the evidence was sufficient to sustain Greene's personal injury claim, reserved his ruling on the motion. See Fla.R.Civ.P. 1.480(b).

The jury was then instructed that it could return damages in favor of Greene for his personal injuries if: (1) Mrs. Flewelling was found to be negligent; (2) Greene sustained a "permanent loss of bodily function"; and (3) Mrs. Flewelling's negligence was the legal cause of Greene's personal injuries. The jury answered all three of these questions affirmatively and awarded Greene $20,600 in damages.

The Flewellings then moved to have the jury's verdict set aside and to have judgment entered in accordance with their previous motion for a directed verdict. As mentioned previously the court granted their motion, stating in its order that Greene had produced "no competent medical evidence" to prove that his loss of taste and smell was caused by the accident or that the loss of these senses was permanent.

The rules governing a posttrial motion for judgment in accordance with a previous motion for directed verdict are the same as those governing a motion for a directed verdict at the close of the evidence. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976). A trial court is authorized to grant such a motion only if there is no evidence or reasonable inferences to support the nonmoving party's position. Stirling v. Sapp, 229 So.2d 850 (Fla.1969); Brown v. Walker, 306 So.2d 209 (Fla. 1st DCA 1975); See H. I. Resorts, Inc. v. Touchton, 337 So.2d 854 (Fla. 2d DCA 1976).

One of the bases upon which the trial court set aside the jury's verdict was that it perceived that there was no evidence of proximate or legal causation. ³ Since we feel this issue is dispositive of the case, we proceed to it first.

It is rudimentary that a claimant must plead and prove that the negligent act of the person against whom he seeks a recovery was the cause of his injuries. Salinetro v. Nystrom, 341 So.2d 1059 (Fla. 3d DCA 1977); McWhorter v. Curby, 113 So.2d 566 (Fla. 2d DCA 1959); W. Prosser, The Law of Torts 236 (4th ed. 1971). Since Greene relied upon his loss of smell and taste to meet the nofault thresholds, it was incumbent upon him to prove that Mrs. Flewelling's negligence was the legal or proximate cause of his loss of these senses. See § 627.737(2), Fla.Stat. (Supp.1976).

Greene first contends the trial court erred in holding that it was necessary for him to produce "competent Medical evidence" of legal causation, because there is no legal requirement that medical evidence be produced on this issue. The general rule seems to be that it is necessary to demonstrate legal causation by expert testimony where this issue is beyond the common knowledge of laymen. W. Prosser, The Law of Torts 241 (4th ed. 1971); See, e. g., Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628 (1939); Parris v. Johnson, 3 Wash.App. 853, 479 P.2d 91 (1970). However, several recent Florida cases seem to indicate that expert testimony is Not necessary to establish legal causation, even in instances where this issue is beyond the common knowledge of laymen. Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974); Alton Box Board Co. v. Pantya, 236 So.2d 452 (Fla. 1st DCA 1970). But even these cases do not obviate the claimant's burden of demonstrating legal causation by some competent evidence in order for him to recover for his injuries.

The trial court gave the following jury instruction on legal causation patterned on Fla.Std.Jury Instr. (Civ.) 5.1(a):

Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.

The standard jury instruction, of course, reflects the law of Florida on this subject. Sardell v. Malanio, 202 So.2d 746 (Fla.1967); Broome v. Budget Rent-A-Car of Jax, Inc., 182 So.2d 26 (Fla. 1st DCA 1966); 23 Fla.Jur. Negligence §§ 26, 29 (1959). Viewing the evidence presented by Greene in light of the above standard we are compelled to agree with the trial court that Greene did not carry his burden of demonstrating that Mrs. Flewelling's negligence was the legal cause of his loss of smell and taste.

Greene offered no explanation of how his injuries affected his ability to smell or taste he merely stated that he possessed these senses before the accident but did...