Meyers v. Shontz, Case No. 2D17-1681

• Citation: 251 So.3d 992
• Decision Date: 13 July 2018
• Docket Number: Case No. 2D17-1681
• Parties: Fred MEYERS and Ninibeth Meyers, Appellants, v. Bonneva SHONTZ, Appellee.
• Court: Florida District Court of Appeals

251 So.3d 992

Fred MEYERS and Ninibeth Meyers, Appellants,

v.Bonneva SHONTZ, Appellee.

Case No. 2D17-1681

District Court of Appeal of Florida, Second District.

Opinion filed July 13, 2018.

Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellants.

Robert Hitchens of Hitchens and Hitchens, P.A., St. Petersburg, and Frank DiCosola of Frank DiCosola, P.A., Pinellas Park, for Appellee.

SALARIO, Judge.

A car owned by Fred Meyers and driven by Ninibeth Meyers rear-ended a car in which Bonneva Shontz was a passenger. Ms. Shontz sued the Meyerses for negligence, and a jury returned a defense verdict. Ms. Shontz moved for a new trial, which the trial court granted. The Meyerses appeal. Because the trial court failed to apply the correct legal standard to the motion for new trial—which is whether the jury's verdict was against the manifest weight of the evidence—we reverse and remand for reconsideration.

I.

On July 9, 2014, Ms. Meyers was driving down Park Boulevard in Seminole. It had been raining on and off, and the roads were wet. As she neared the intersection of Park and Starkey Road, she saw a car stop in front of her. She hit the brakes, but there was no time to stop. Her car hit the car in front of her. Ms. Shontz was a passenger in that car, which was driven by her husband. The Shontzes' car was pushed into a car in front of it, which was driven by Nicholas Bozick. The Meyerses' car (a 2005 Chevy Aveo) was totaled. The Shontzes' car (a 2013 Chevy Equinox) had to have its rear bumper replaced. Mr. Bozick's car (a 2013 Toyota Highlander) had about $740 of damage. No one went to the hospital on the day of the accident.

Ten months later, Ms. Shontz sued Mr. and Ms. Meyers for physical injuries she says she suffered in the accident.¹ Her complaint alleged that Ms. Meyers negligently caused the wreck, that the wreck caused Ms. Shontz's injuries, and that Mr. Meyers was vicariously liable for Ms. Meyers's negligence under the dangerous instrumentality doctrine.² The Meyerses denied those allegations and, in addition, contended that Mr. Shontz negligently operated his vehicle and that his negligence caused the accident. The case went to discovery and, after that, to trial.

Whether Ms. Meyers negligently caused the accident and whether the accident caused Ms. Shontz's injuries were hotly disputed at trial. Ms. Shontz's theory was that as the rear driver, Ms. Meyers was necessarily negligent, that Ms. Meyers was driving too fast on a rainy day, and that the accident injured Ms. Shontz's back or aggravated her existing back problems. The Meyerses, on the other hand, argued that the Shontzes' car suddenly changed lanes and left Ms. Meyers without room to stop. They also contended that Ms. Shontz's back problems were not caused by this accident, but rather by scoliosis—a condition involving a curvature of the spine—degenerative changes in the spine, a different car accident in 1995, or other incidents earlier in Ms. Shontz's life.

The evidence on the issue of negligence came from three witnesses—Mr. Shontz, Mr. Bozick, and Ms. Meyers. Mr. Shontz, who was driving the Shontzes' car, testified that before the accident he and Ms. Shontz left a Wal-Mart Neighborhood Market and drove a couple of miles on Park Boulevard toward Starkey Road. When he got to the intersection of Park and Starkey, he stopped for a red light behind Mr. Bozick's car, where he sat for "about five seconds or so." He heard skidding tires and told Ms. Shontz to brace herself right before they were hit by the Meyerses' car and pushed into Mr. Bozick's car. Mr. Shontz talked to Ms. Meyers at the accident scene, and she said that Mr. Shontz had cut her off. At trial, Mr. Shontz could not remember whether he changed lanes before the accident happened.

Mr. Bozick's testimony was a little more complicated. He testified that after he stopped at the light at Park and Starkey, he saw the Shontzes' car pull in behind him and stop. He initially could not say whether the Shontzes' car changed lanes into the lane he was in, but after being presented with testimony he gave at a pretrial deposition he admitted that the Shontzes' car had switched lanes from the right into the lane his car occupied. He said, however, that the lane change was not "quick" or a "zip, zip type thing." He was asked on direct examination about how much time passed between when he stopped at the light and when the accident happened, and he testified both that it was "a couple of seconds" and "three to five seconds." He then was asked on cross-examination whether it was three to five seconds between his seeing the Shontzes' car behind him and the accident, to which he answered "three to seven seconds or so—maybe a little bit longer" but acknowledged that "it's difficult to give time." He also testified that he thought that Ms. Meyers was "going too fast for the road conditions at that time."

Ms. Meyers testified that before the accident she was driving down Park at about thirty-five miles per hour. Although Park has a forty-five-mile-per-hour speed limit in that area, she was driving more slowly because the streets were wet. She saw the Shontzes' car because she was traveling in the same lane behind it. At some point, Ms. Meyers moved one lane to the left and the Shontzes remained in the lane they were in. That situation prevailed for a few minutes. As Ms. Meyers approached Starkey Road, the Shontzes' car moved into her lane, leaving only one car length between her car and theirs. She testified that she saw the Shontzes' car coming into her lane "all of a sudden" and that "all of a sudden it just came in there." Ms. Meyers applied the brakes and tried to steer into a different lane but did not have enough time to avoid an accident.

The evidence on causation came from Ms. Shontz and several medical professionals. Much of it is in conflict. What seems clear is that Ms. Shontz did not have any pain or, apart from stress, other symptoms either at the scene of the accident or immediately thereafter. She testified that three to four days later, however, she had a headache and neck and back stiffness.³ She visited her chiropractor five days after the accident, complaining of moderate pain throughout her back and mild pain in her neck. He gave her chiropractic treatments. Ms. Shontz began seeing an orthopedic surgeon about a month after the accident. An MRI revealed disc bulges, protrusions, and herniations throughout her spine. Her complaints grew more severe, including pain and numbness in her left leg. She testified at trial that she is no longer able to do things she enjoyed doing before the accident.

It is also clear that Ms. Shontz had issues with her back long before the accident. She was diagnosed with scoliosis

at twenty-one. There was evidence at trial that the curvature of the spine that comes with scoliosis can create wedging on the vertebrae, inflammation of the nerves, arthritis, and degenerative changes that all could cause the kinds of symptoms of which Ms. Shontz complained. She has received chiropractic treatment on and off since her diagnosis. Ms. Shontz was also in a bad car accident in 1995. She was a passenger in a car her son was driving on Interstate 275 when another car came over two lanes and struck her son's car on her side, causing it to spin around and slam into a concrete divider. Afterward, she had pain in her neck, shoulder, and lower back and suffered headaches. She treated with her chiropractor and neurologist and was told by her doctors that she had suffered a partial permanent injury as a result of the accident. She hired an attorney, brought a claim, and settled.

There was no MRI or other objective evidence describing the condition of Ms. Shontz's back before the accident and thus no ready way to say that any particular physical condition in her spine (e.g., a bulge or herniation) did not exist before the accident but did exist after. Ms. Shontz's theory that the accident caused her injuries was based on her own subjective complaints of pain and physical limitations after the accident that she said did not exist before. Her orthopedic surgeon testified that her complaints were corroborated by the results of the postaccident MRI and opined that she suffered permanent injuries to her back as a result of the accident. Her chiropractor opined that she suffered a "classical whiplash injury" to her neck

and back. Ms. Shontz testified that her symptoms, need for treatment, and limitations on her physical abilities were greater after the accident than they were before. She had, in her words, reached a "new normal" after the accident that was different from her old normal before it.

The Meyerses, in contrast, theorized that Ms. Shontz's symptoms were not caused by the accident, but were rather the result of her scoliosis

, her 1995 accident, various other incidents, and degeneration in her spine. An orthopedic surgeon who testified on their behalf as an expert witness conducted a compulsory medical examination and opined that the accident with Ms. Meyers neither caused any back injury to Ms. Shontz nor aggravated any preexisting back injury. He theorized that the findings from the postaccident MRI took decades to develop and did not show any sign of being related to trauma, such as would occur in a car accident. Based on Ms. Shontz's complaints of pain subsequent to the accident, the surgeon testified that he believed that she suffered a sprain or strain to the neck which would have healed within months with minimal treatment.

The Meyerses supplemented the expert testimony with evidence that Ms. Shontz had visited chiropractors for problems with her neck and back many times in the years leading up to the accident. This included evidence that Ms. Shontz visited the chiropractor in the two months before the accident complaining of severe back pain, problems with her pelvis and left foot, and issues with walking. Ms. Shontz testified that she did not remember these visits. The...