Snedegar v. Arnone
| Decision Date | 14 September 1988 |
| Docket Number | No. 4-86-3009,4-86-3009 |
| Citation | 13 Fla. L. Weekly 2147,532 So.2d 717 |
| Parties | 13 Fla. L. Weekly 2147 Barbara D. SNEDEGAR, Appellant, v. James J. ARNONE and Child Protection Team, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Philip Burlington of Edna L. Caruso, P.A., and Kocha & Jones, West Palm Beach, for appellant.
Michele I. Nelson of Paxton, Crow, Bragg & Smith, P.A., West Palm Beach, for appellees.
This is an appeal by a plaintiff from an adverse jury verdict and final judgment. We reject two of the plaintiff's three contentions but agree with her third, and reverse and remand for new trial.
At the charge conference the plaintiff requested that the court give Florida Standard Jury Instruction 6.2b respecting aggravation of a preexisting condition. The defense objected on the ground it did not think there was testimony showing aggravation of a preexisting condition. Plaintiff's counsel said there was testimony about pain in her shoulder and that it was not shown what had caused pain in her shoulder back in 1978 or 1979; that there was testimony of a bursa, and the jury could find aggravation of the earlier condition. To the court's query about whether a doctor had testified on this the defense answered no.
The defense did not request an instruction regarding the permanency threshold for recovery under the no fault insurance statute, section 627.737(2), Florida Statutes, and no such instruction was given.
During closing argument, counsel for the defense said the following:
Was Mr. Arnone negligent?
He was.
You're going to hear ... a statute be read to you that a person does have to keep his vehicle far enough back so he can stop....
I indicated in opening statement on behalf of the Defendant you would probably find some fault of him being a little too close under the facts and circumstances of this particular case. I guess it's up to you to decide whether it was unreasonable. They had just taken off from a traffic light and he was a car length or two behind her. I submit she stopped suddenly; he may have been too close and there may well be some negligence [that] is actionable and the verdict is to be rendered in favor of the Plaintiff not just if Mr. Arnone was negligent but that his negligence caused damages.
If the Plaintiff wasn't hurt in the accident, even if Mr. Arnone caused some of it; all of it--I don't care--there is no recovery because the negligence has to be a legal cause of damages.
After deliberating for about forty-five minutes the jury presented the court with two questions. One was whether the verdict form question on damages required a dollar amount or a percentage figure. The answer was that if there were damages the response should be a dollar amount. The second question was, "How do we proceed if we feel that--yes--his car did, in fact, hit the truck--but we don't feel that any physical damage occurred?" The judge said the verdict form was not inquiring whether the car hit the truck, but whether there was negligence that was the legal cause of damage to the plaintiff.
The jury in its verdict answered no to the question whether there was negligence on the defendant's part that was the legal cause of damages to the plaintiff, and awarded no damages.
Florida Standard Jury Instruction 6.2b, if given, would have incorporated as a possible element of damages the following:
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.
This instruction is said to be derived from the opinion in C.F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694 (1937).
Appellant reasonably reads the colloquy preceding the denial of her request for this instruction to indicate the reason for the denial was the attorney's response that there was not a physician's specific testimony that a preexisting condition was aggravated by the accident.
We conclude...
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Jacobs v. Westgate
...is required where a jury might reasonably have been misled, regardless of whether it has actually been misled. See Snedegar v. Arnone, 532 So.2d 717 (Fla. 4th DCA 1988). Over Jacobs' objections, the trial court instructed the jury on the defense of mitigation in addition to the defense of c......
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R.J. Reynolds Tobacco Co. v. Jewett
...misled, but whether the jury might reasonably have been misled” by the absence of the proposed instructions. Snedegar v. Arnone, 532 So.2d 717, 719 (Fla. 4th DCA 1988). Absent the proposedinstruction and its accurate statement of applicable law, the jury was left to guess whether “the exerc......
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R. J. Reynolds Tobacco Co. v. Jewett
...misled, but whether the jury might reasonably have been misled" by the absence of the proposed instructions.Snedegar v. Arnone, 532 So. 2d 717, 719 (Fla. 4th DCA 1988). Absent the proposed instruction and its accurate statement of applicable law, the jury was left to guess whether "the exer......
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Woodard v. ARMENIAN CULT. ASSOC. OF AMER.
...instruction, we reverse the final judgment entered in favor of the Association and remand for a new trial. See Snedegar v. Arnone, 532 So.2d 717, 719 (Fla. 4th DCA 1988). Woodard also contends that the court erred in failing to grant a directed verdict on the affirmative defense of comparat......