Llompart v. Lavecchia

• Citation: 374 So.2d 77
• Decision Date: 31 July 1979
• Docket Number: No. 78-1983,78-1983
• Parties: Nelson LLOMPART, etc., et al., Appellants, v. Donald LAVECCHIA et al., Appellees.
• Court: Florida District Court of Appeals

Page 77

374 So.2d 77

Nelson LLOMPART, etc., et al., Appellants, v. Donald LAVECCHIA et al., Appellees.

No. 78-1983.

District Court of Appeal of Florida, Third District.

July 31, 1979.

Rehearing Denied Sept. 10, 1979.

Joe N. Unger, Robert M. Sussman, Miami,for appellants.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.

Before PEARSON, HENDRY and HUBBART, JJ.

PER CURIAM.

This is an appeal by the plaintiffs from a final judgment, based on a jury verdict, finding certain defendants one hundred percent negligent and awarding $10,830 to plaintiff Nelson Llompart, and $5,630 to his wife, plaintiff Elia Llompart.

The sole issue on appeal, arising from the plaintiffs' contention that the damages awarded were inadequate, involves the alleged error of the trial judge in refusing to charge the jury, as requested by the plaintiffs, on aggravation or activation of disease or defect as an element of damages. The facts recited will be limited to those which go to the entitlement to this charge and the claimed error in its refusal.

By its verdict, the jury determined that the damages suffered by plaintiff Nelson Llompart were caused by the negligence of the operator of the vehicle in which he was a passenger and, vicariously, by the vehicle operator's employer, the owner of the vehicle, and the insurer. A multi-car accident was the cause of Mr. Llompart's injury. For purposes of this appeal, it is unnecessary to delineate further the circumstances of the accident or the determination of the jury concerning which of the defendants were liable for Llompart's injuries and which were not.

The evidence revealed that before the accident the plaintiff was a wage-earning, functional human being but that, by his bizarre behavior, he showed an abnormal mental adjustment to life.

The testimony that is claimed to have raised the issue upon which the plaintiffs were entitled to the refused instruction is that of Drs. Charles Mutter and Hector Sanchez, both psychiatrists. Dr. Mutter did not see the plaintiff before the accident, but testified that he had evaluated him psychiatrically on September 23, 1976. At that time, Llompart was mute and unable to communicate. The history Dr. Mutter received from Mrs. Llompart was that after her husband was injured in the collision, he was taken to Hialeah Hospital and was bleeding from his right ear and had to undergo surgery. After leaving the hospital, he started acting strangely and became very nervous, very sensitive to noises, afraid to be in a car, and afraid that the slightest noise meant something was going to happen to him. He became more withdrawn, refused to communicate or talk to other people, and became progressively worse. He began to see or hear things which no one else saw or heard.

As time passed, Llompart refused to bathe himself, would not take care of himself, clung to his wife, wouldn't leave her side, and had to be fed by her. From the time of the accident, he became so withdrawn that he would not speak or communicate with anyone. Not only had he become uncommunicative, but also inactive sexually and totally withdrawn.

After receiving Llompart's history and giving him an examination, Dr. Mutter diagnosed him as having "post-traumatic psychosis, . . . schizophrenia, . . . a major medical disorder." The psychosis was defined as "insanity, acutely mentally ill."

Dr. Mutter, like Dr. Sanchez, who also testified, was of the opinion that the plaintiff's symptoms were such that they could have been caused by the injury sustained. In speaking of the accident, he said, "I would say it would be a trigger." For his part, Dr. Sanchez testified that in his opinion, there would "have to be a direct relation" between the accident and subsequent behavior because Llompart "wasn't that way" before the accident, but rather "was a hard working man."

There was contrary evidence from Dr. Paul Jarrett, a psychiatrist produced by the defendants, who testified that Llompart had sustained no organic brain damage. In a hypothetical question put to Dr. Jarrett, defendants' counsel described Llompart as withdrawn, clinging to his wife with his head buried in her shoulder, unshaven, having hair down below his shoulders, speaking very little, having to be washed and fed by his wife, and regressing to an infantile state. In Dr. Jarrett's opinion, the automobile accident of September 3, 1975, had no connection with this subsequent behavior, and the type of injury sustained did not produce a behavioral change of the sort described as undergone by the plaintiff.

At the charge conference, counsel for the plaintiffs requested that the jury be instructed in accordance with Florida Standard Jury Instruction 6.2b, which is as follows:

"Any aggravation of an existing disease or physical defect (or activation of any such latent condition), resulting from such injury. If you find that there was such an aggravation, you should determine, if you can, what portion of (claimant's) 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 your verdict for the entire condition."

A requested written charge was presented and refused. The jury was, however,...