Salazar v. Santos (Harry) & Co., Inc.

• Decision Date: 12 January 1993
• Docket Number: No. 90-2529,90-2529
• Parties: 18 Fla. L. Week. D284 Georgina SALAZAR, as Personal Representative of the Estate of Indalecio Salazar, Arturo Salazar, Rigoberto Salazar, and Alfredo Salazar, by and through their mother and Guardian, Georgina Salazar, Appellants, v. SANTOS (HARRY) & CO., INC. and Scott Andrew Kessler, Appellees.
• Court: Florida District Court of Appeals

Page 1125

614 So.2d 1125

18 Fla. L. Week. D284

Georgina SALAZAR, as Personal Representative of the Estate

of Indalecio Salazar, Arturo Salazar, Rigoberto Salazar, and Alfredo Salazar, by and through their mother and Guardian, Georgina Salazar, Appellants, v. SANTOS (HARRY) & CO., INC. and Scott Andrew Kessler,

Appellees.

No. 90-2529.

District Court of Appeal of Florida,

Third District.

Jan. 12, 1993.

Rehearing Denied April 13, 1993.

Perse, P.A., & Ginsberg, P.A., and Arnold Ginsberg, and Manuel Vega, Jr., P.A., Miami, for appellants.

Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A., Cooper & Wolfe, P.A. and Marc Cooper and Linda G. Katsin, Miami, for appellees.

Before HUBBART, COPE and GERSTEN, JJ.

PER CURIAM.

This is an appeal from a final judgment based on a jury verdict awarding damages for pain and suffering to the children of Indalecio Salazar, the decedent, who was killed in a car accident. We affirm.

This is the second time this case has been before us. The facts of the case are found in the first opinion, Salazar v. Santos (Harry) & Co., Inc., 537 So.2d 1048 (Fla. 3d DCA) ("Salazar I "), review dismissed, 544 So.2d 200 (Fla.), review denied, 545 So.2d 1367 (Fla.1989). The jury in the first trial found the defendants liable and awarded compensatory damages to the decedent's estate, wife and three sons, including a award of $850,000 to each of the three sons for pain and suffering. Insofar as is pertinent here, the trial court remitted the three sons' awards to $170,000, $185,000, and $200,000 respectively, and alternatively ordered a new trial on damages if the remittitur was not accepted. The plaintiff mother rejected the remittitur on behalf of the three minor children and appealed the order granting a new trial.

In upholding the trial court's ruling on this point, this court stated:

The record presented amply supports the trial judge's order as it relates to the children's awards. The jury awarded $850,000 to each child. In his order of remittitur, the trial judge held that such an award was unreasonable and excessive because the plaintiff failed to provide "evidence of physical [ ] or mental abnormality [ ] or even a hint of physical or emotional impairment" which the children had suffered due to the death of their father. While the judge recognized that the Salazar children had "suffered the grief common to all children who endure the loss of a parent", he went on to say that "[t]his Court cannot help but note, however, that these particular children have adjusted remarkably to their loss." Our reading of the trial transcript shows the trial judge's ruling to be reasonable.... As further support for finding the verdict was excessive, the judge went on to cite section 768.043(2)(e), Florida Statutes (1987), regarding remittitur and additur actions arising out of the operation of motor vehicles and held that "reasonable persons could not conclude that a child is automatically entitled to $850,000 for the death of a parent absent evidence of a substantial impact on the child." He further pointed out that "the jury awarded identical amounts to each child even though the three children were substantially different in age, and thus would sustain damages over different time frames. The jury thus appears to have misconceived the evidence or the law governing the award of damages to the children." (Emphasis in the original.) On this basis, and again citing section 768.043, the trial judge held that the jury could only have reached its verdict through speculation or conjecture or through passion or prejudice.

We agree with the trial judge's reasoning. An award based on the wrongful death statute requires that the trier of fact consider "such elements as the relationship between the surviving children and the decedent and the varying ages of the children" and that "[s]uch a consideration, under Florida law, would necessarily require different amounts for surviving children of different ages." ... Accordingly, we affirm the order on appeal as it relates to the awards to the decedent's sons.

537 So.2d at 1051 (citations omitted).

After remand, the trial court conducted a new trial on the noneconomic damages suffered by the children. In the first trial there had been virtually no evidence on this issue submitted to the jury, and the evidence submitted in the first trial did not distinguish among the children. In the second trial the parties developed an extensive evidentiary record which included factual and expert psychological testimony regarding the noneconomic injury to each child. There was an abundance of evidence on the question of how the father's death affected each child individually. ¹

The parties conducted the new trial on the understanding that each party was free to introduce such evidence as it saw fit and was not confined to the record made in the first trial. In the second trial the plaintiff requested damage awards of $2.9 million, $3.2 million, and $3.4 million for the children, respectively, on the theory that the evidence adduced at the second trial supported such...