Nuta v. Genders
| Decision Date | 30 March 1993 |
| Docket Number | No. 92-620,92-620 |
| Citation | 617 So.2d 329 |
| Parties | 18 Fla. L. Week. D855 Louis NUTA and Betty Nuta, d/b/a Nuta's Boat Yard, Appellants, v. Sidney J. GENDERS and Lodie Genders, his wife, Appellees. |
| Court | Florida District Court of Appeals |
George, Hartz, Lundeen, Flagg & Fulmer and Esther E. Galicia, Coral Gables, for appellants.
James C. Blecke and John B. Ostrow, Miami, for appellees.
Before COPE, LEVY and GODERICH, JJ.
The defendants, Louis Nuta and Betty Nuta d/b/a Nuta's Boat Yard, appeal from a final judgment entered in favor of the plaintiffs, Sidney J. Genders and Lodie Genders, and from an order denying the defendants' motion for judgment notwithstanding the verdict or for a new trial. We affirm, in part, and reverse and remand, in part.
While at the defendants' boat yard, Sidney Genders was struck in the head by Daniel Virgil with an iron bar. As a result, Sidney Genders' skull was fractured. The plaintiffs filed an action against the defendants alleging negligence and respondeat superior liability for Virgil's misconduct in assaulting and battering Sidney Genders.
The case proceeded to trial. Sidney Genders testified that Virgil, a security guard at the boat yard, had threatened him two months earlier. Norbert Charles testified he was a customer of Nuta's Boat Yard and hauled his boat there in the spring of 1989. Mr. Nuta told him that if he came on the premises after hours, he had to go through his security guard, Virgil. Sergeant Israel Gonzalez of the City of Miami Police Department testified that on January 25, 1989, he was called to Nuta's Boat Yard to investigate an assault involving Daniel Virgil. While investigating the assault, Mr. Nuta came to the scene and identified Daniel Virgil as a security guard for Nuta's Boat Yard. Louis Nuta denied all responsibility for Virgil. Nuta's bookkeeper denied that Virgil was ever employed at the boat yard as a security guard. At the close of all the evidence, the plaintiffs moved to amend their complaint to conform to the evidence concerning the negligent retention of Daniel Virgil. Over the defendants' objections, the trial court granted the plaintiffs' motion to amend. The jury was instructed on all legally recoverable elements of damage and told to
The jury returned a verdict finding that although Daniel Virgil assaulted and battered Sidney Genders, those acts were not within the course and scope of Virgil's alleged employment with the defendants. The jury also found that the defendants were negligent and awarded the plaintiffs $65,500.00 in damages, including $15,000.00 for future medical expenses. The defendants' post-trial motions were denied and a final judgment was entered in accordance with the jury's verdict. The defendants appealed.
The defendants raise two issues on appeal. The first issue is whether there was sufficient evidence to support the jury's determination that the defendants were liable to the plaintiffs on the theories of negligent hiring and negligent retention. The second issue is whether there was sufficient evidence to support the jury's determination that the plaintiffs were entitled to an award of $15,000.00 for future medical expenses.
Although the evidence may be susceptible to different...
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