Gross v. Lyons

• Decision Date: 13 May 1998
• Docket Number: No. 96-1399.,96-1399.
• Citation: 721 So.2d 304
• Parties: Selma GROSS, Appellant/ Cross-Appellee, v. Rebecca Lynn LYONS, individually and as parent and natural guardian of Brittany Lyons, Appellee/ Cross-Appellant.
• Court: Florida District Court of Appeals

721 So.2d 304

Selma GROSS, Appellant/ Cross-Appellee, v. Rebecca Lynn LYONS, individually and as parent and natural guardian of Brittany Lyons, Appellee/ Cross-Appellant.

No. 96-1399.

District Court of Appeal of Florida, Fourth District.

May 13, 1998.

Opinion Granting Certification on Denial of Rehearing September 23, 1998.

Elizabeth M. Rodriguez of Kubicki Draper, Miami, for appellant/cross-appellee.

Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, Donald R. Fountain, Jr. and David M. Gaspari of Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, P.A., West Palm Beach, for appellee/cross-appellant.

PARIENTE, BARBARA J., Associate Judge.

Following a jury verdict that found that plaintiff did not sustain a permanent injury and did not award any economic damages, the trial court granted plaintiff a new trial limited to the issue of economic damages. Appellant/cross-appellee (defendant), appeals this order granting a new trial on economic damages, and also appeals the granting of a directed verdict on causation. Plaintiff cross-appeals the trial court's refusal to order a new trial on all issues of damages, including permanency. She additionally asserts error regarding a jury instruction. We reverse because the trial court gave a confusing and misleading instruction, which was also an incomplete statement of the law concerning a subsequent accident.

Plaintiff's lawsuit arises from a rear-end collision that she claims resulted in multiple injuries, including an injury to her back.¹ Three months later plaintiff was involved in a second automobile accident. Plaintiff claimed that she did not suffer any additional injuries as a result of this second accident and that her damages resulted from the first accident. When plaintiff's condition did not improve, plaintiff's treating orthopedic surgeon performed a fusion on her lower lumbar spine.

Defendant admitted liability for causing the first accident, but denied being the legal cause of plaintiff's damages. Defendant claimed that any of plaintiff's medical problems, including her back surgery, resulted from a preexisting back condition or alternatively from the second accident.

Dr. G. Clay Baynham, plaintiff's treating doctor and expert, attributed plaintiff's injuries to the first accident and assigned plaintiff a 15% permanent impairment to her body as a whole as a result of the first accident. However, Dr. Baynham also stated that because the second accident occurred within a few months of the first accident, there was not enough time to get a good idea about whether plaintiff was getting better or worse with regard to the first accident. On the subject of apportionment between the first and second accidents, he testified that:

[O]ver the majority of the time period that we followed [plaintiff], her symptoms were fairly consistent with the complaints she had following the original accident and I don't know that I can partition off any particular responsibility of the first accident versus the second accident with regard to how she ended up ultimately. It's just not possible.

Defendant's experts testified that the first accident did not lead to the surgery. Some blamed plaintiff's preexisting spinal defect; others expressed no opinion on the cause of the surgery or opined that the second accident was a cause. For example, Dr. Richard J. Stropp, one of defendant's experts, testified that plaintiff's "major back injuries occurred in the second accident." On cross-examination, however, he stated that he was not testifying with regard to causation; that is, whether it was the first accident, the second accident, or a combination of both that ultimately led to plaintiff's surgery.

At the close of the evidence, plaintiff moved for a directed verdict on the issue of causation, arguing that because it was undisputed that she had sustained at least a temporary sprain as a result of the first accident, the only question for the jury to decide was the extent of her damages. In granting a directed verdict on causation, the trial court reasoned that "no reasonable man could find but that the plaintiff suffered some medical expenses as a result of the accident."²

Plaintiff also moved for a directed verdict on the issue of apportionment of damages between the first and second accidents. Plaintiff argued that there should be no apportionment between the first and second accidents, as had been proposed by defendant on the verdict form, because every doctor testified that "the second accident did not cause her to need surgery, did not cause a permanent impairment." However, plaintiff conceded that this would not prohibit defendant from arguing "that some of the medical bills were incurred as a result of the second accident."

The trial court granted a directed verdict on apportionment but at the same time advised the parties that they could argue this issue to the jury. At the charge conference, defendant asserted that she was nonetheless entitled to separate jury instructions concerning the preexisting back condition and the second accident.

In accordance with the standard jury instructions, the trial court instructed the jury that the plaintiff could recover for "any aggravation of an existing disease or physical defect." Fla. Std. Jury Instr. (Civ.) 6.2(b). Further, the trial court instructed the jury:

If you find that there was such an aggravation, you should determine, if you can, what portion of Ms. Lyons' condition resulted from the aggravation and make allowance in your verdict only for the aggravation; however, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, you should consider and make allowance in the verdict for the entire condition.

See id. This standard instruction on aggravation covers preexisting conditions, specifically defendant's claim that plaintiff had a preexisting back condition. This instruction is not tailored to address the issue of apportionment between two accidents especially where, as here, a plaintiff is claiming that the first accident caused the injury and subsequent surgery.

Over plaintiff's objection, the trial court agreed to give defendant's requested instruction concerning the second accident:

Rebecca Lyons may not recover any loss, injury or damage caused by the second accident of September 15, 1992.

Once the trial court decided to give an instruction,³ it should have accurately and completely stated the law.⁴ See Poole v. Lowell Dunn Co., 573 So.2d 51 (Fla. 3d DCA 1990).

Reversible error occurs when an instruction is not only an erroneous or incomplete statement of the law, but is also confusing or misleading. See Florida Power & Light Co. v. McCollum, 140 So.2d 569 (Fla. 1962); see also Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990). Prejudice to a party further results where a jury instruction tends to endorse an argumentative position. See Sierra v. Winn Dixie Stores, Inc., 646 So.2d 264 (Fla. 3d DCA 1994).

The test is not whether a particular jury was actually misled, but "instead the inquiry is whether the jury might reasonably have been misled." McCollum, 140 So.2d at 569. Therefore, the question here is whether the jury was adequately instructed regarding the effect of the subsequent accident on plaintiff's claim for damages, or whether they might reasonably have been misled. See Emory v. Florida Freedom Newspapers, 687 So.2d 846, 847 (Fla. 4th DCA 1997). To make this determination, we must examine the law regarding apportionment of damages between multiple accidents.

In Washewich v. LeFave, 248 So.2d 670 (Fla. 4th DCA 1971), where the evidence revealed two successive accidents and the defendant was only responsible for causing the second accident, the burden was on the plaintiff to prove to the extent reasonably possible what injuries were proximately caused by each accident:

The jury should be instructed to make an apportionment of the damages between the two accidents insofar as it may be reasonably possible to do so, but if an apportionment is impossible, the jury may be authorized to charge the defendant with all damages flowing from the entire injury.

Id. at 672-73 (emphasis supplied).

Our court in Washewich explained that the requirement that a plaintiff prove that his or her damages is proximately caused by the negligence of the tortfeasor is

somewhat relaxed where the evidence indicates that the defendant's negligence has proximately resulted in an aggravation of a pre-existing injury and the entire consequence cannot reasonably be divided as between several independent causes.

Id. at 672. We cited to Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694, 696 (1937) as support for this legal proposition:

The defendant must respond in damages for such part of the diseased condition as his negligence has caused and if there can be no apportionment, or it cannot be said that the disease would have existed apart from the injury, then he is responsible for the diseased condition.

In Washewich, we rejected the defendant's argument that the same principle should not apply where the first accident was caused by the fault of the plaintiffs:

The rule of Hamblen has as its purpose the prevention of a subsequent wrongdoer from escaping responsibility where his conduct contributed to the creation of the situation in which the problems of apportionment arose. If we are correct in this, it follows that the rule would apply regardless of whose fault caused the first accident.

Washewich, 248 So.2d at 673.

The issue is not, as the dissent suggests, whether the first accident was a proximate cause of the second accident as in Braunstein v. McKenney, 73 So.2d 852 (Fla.1954). Rather, the issue is whether the first accident was a proximate cause of plaintiff's damages. The policy issue is the same whether it be the first or second accident: a tortfeasor should not escape responsibility when two independent causes both...