Volusia Cnty. v. Joynt

• Decision Date: 13 November 2015
• Docket Number: No. 5D14–3403.,5D14–3403.
• Citation: 179 So.3d 448
• Parties: VOLUSIA COUNTY, Appellant, v. Erin JOYNT, Appellee.
• Court: Florida District Court of Appeals

179 So.3d 448

VOLUSIA COUNTY, Appellant,

v.Erin JOYNT, Appellee.

No. 5D14–3403.

District Court of Appeal of Florida, Fifth District.

Nov. 13, 2015.

Rehearing Denied Dec. 10, 2015.

Kara Berard Rockenbach and Kristi Bergemann Rothell, of Methe & Rockenbach, P.A., West Palm Beach, and Francis J. Carroll, Assistant County Attorney, Deland, for Appellant.

John M. Phillips and Thomas C. Roberts, of Law Office of John M. Phillips, LLC, Jacksonville, for Appellee.

BERGER, J.

Volusia County appeals a final judgment entered in favor of Erin Joynt in the sum of $2.6 million. The County challenges only that portion of the judgment awarding damages for lost earning capacity and future medical expenses. As to those future economic damages, the County argues there was no reasonable evidence on which the jury could legally predicate a verdict. We agree.

In July 2011, Joynt was severely injured when she was run over by a Volusia County Beach Patrol truck while sunbathing.¹ Thereafter, Joynt brought a negligence suit against the County, seeking damages for the injuries she suffered. Following a four-day trial, the jury awarded $2.6 million in compensatory damages, broken down as follows: $2 million for past and future pain and suffering; $500,000 for diminished earning capacity, and $100,000 for future medical expenses. As previously stated, only the damages awarded for diminished earning capacity and future medical expenses are in dispute. As to those claims, the County argues the trial court erred in failing to grant its motion for directed verdict.

"A motion for directed verdict should be granted only where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party." Benitez v. Joseph Trucking, Inc., 68 So.3d 428, 430 (Fla. 5th DCA 2011) (citing Etheredge v. Walt Disney World, Co., 999 So.2d 669, 671 (Fla. 5th DCA 2008) ). Our review is de novo. Seibert v. Riccucci, 84 So.3d 1086, 1088 (Fla. 5th DCA 2012) (citing Andrews v. Direct Mail Express, Inc., 1 So.3d 1192, 1193 (Fla. 5th DCA 2009) ).

We begin our analysis with Joynt's claim for loss of future earning capacity. On this claim, the jury awarded $500,000 in damages. Florida allows recovery for future damages for loss of earning capacity. W.R. Grace & Co.–Conn. v. Pyke, 661 So.2d 1301, 1304 (Fla. 3d DCA 1995) (citing Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97, 99 (Fla.1950) ). The purpose of such an award is to "compensate a plaintiff for loss of capacity to earn income as opposed to actual loss of future earnings." Id. at 1302. "[T]he appropriate test is to permit the recovery of future economic damages when such damages are established with reasonable certainty." Auto–Owners Ins. Co. v. Tompkins, 651 So.2d 89, 91 (Fla.1995). "A plaintiff must demonstrate not only reasonable certainty of injury, but must present evidence which will allow a jury to reasonably calculate lost earning capacity." W.R. Grace & Co.–Conn., 661 So.2d at 1302 (citing Auto–Owners Ins. Co., 651 So.2d at 91 ); accord Pruitt v. Perez–Gervert, 41 So.3d 286, 289 (Fla. 2d DCA 2010) ; Truelove v. Blount, 954 So.2d 1284, 1288 (Fla. 2d DCA 2007) ; Hubbs v. McDonald, 517 So.2d 68, 69 (Fla. 1st DCA 1987) ("A jury instruction on diminished capacity to earn in the future is warranted when the record demonstrates the existence of ‘reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss.’ " (quoting Long v. Publix Super Markets, Inc., 458 So.2d 393, 394 (Fla. 1st DCA 1984) )); Allstate Ins. Co. v. Shilling, 374 So.2d 611, 613 (Fla. 4th DCA 1979) (holding that evidence of "some degree of permanent injury is sufficient" but that there also must exist "some basis upon which the jury can reasonably assess damages"). The County convincingly argues that Joynt failed to meet her burden. Although she put on evidence sufficient to establish reasonable injury, Joynt failed to demonstrate any diminished ability to earn money in the future and failed to present evidence that would allow the jury to quantify the amount of an award.

Prior to May 2010, Joynt was employed as a paraeducator, which is a teaching-related position within a school, where she was generally responsible for specialized or concentrated assistance for students in elementary and secondary schools. However, at the time of the accident, she was voluntarily unemployed, earning no income.²

Just over a year after the accident, Joynt resumed her employment as a reading intervention paraeducator working full-time for $18,000 per year with benefits. Although she faced some physical challenges,³ the record reflects those challenges did not affect her ability to do her job. Joynt testified that she loved her job as a paraeducator and intended to continue her employment the following school year. Joynt's principal, Brandi Flisram, confirmed that she planned on having Joynt return to her position for the following school year, opining that students like her, she is an effective teacher, and her evaluation was above satisfactory. In fact, Ms. Flisram noted that many of Joynt's students actually tested out of the reading intervention program due to her teaching ability. Ms. Flisram had no concerns about Joynt's progression as an educator, and she further testified that none of Joynt's physical limitations would affect Joynt's ability to be promoted, although she would be reevaluated if her health ever declined.

Joynt relies on the latter part of Ms. Flisram's testimony to support the damage award, arguing that a simple review of the trial transcript by Ms. Flisram, which contained the testimony of various doctors describing her injuries, would likely cost Joynt her career. She claims the jury could have surmised that, although optimistic about her future, she is reasonably certain to lose her job as a paraeducator due to her injuries. To that end, she asserts the $500,000 award is equivalent to earning $17,241.38 per year, assuming she would have worked until the social security retirement age of sixty-five. This argument is purely speculative. As the trial court acknowledged:

Now, you know, the problem with that is [the jury] may be out for hours anguishing over this because there's not really any evidence as to how they could come up with a number and upon which they could base a number, so what does a full time teacher make. And it's, based on this evidence, I think sheer speculation to say she's likely to get fired when she gets back. I mean, I guess you can argue it, but I'm not sure there's really any evidence that she's going to be....

....

What other evidence is there other than, I guess, you could just kind of speculate that someone with these injuries—and I don't diminish her injuries. I'm not trying to denigrate that at all, but I just don't know how you can say, well—what age would they pick out, 50, 55, 45, 60? It just would be pure, abject speculation, wouldn't it?

Yes, which is why it was error to submit this claim to the jury. See W.R. Grace & Co.–Conn., 661 So.2d at 1303 (finding "testimony that there was a possibility that [plaintiff] would lose his job was irrelevant, purely speculative, and inappropriate" and that directed verdict should have been granted where trial court recognized the evidence submitted by plaintiff was meager).

We find there was absolutely no testimony presented to indicate Joynt was completely disabled from further gainful employment as the result of her injuries or was unable to work to the same age she would have otherwise. Indeed, the opposite is true. As the County highlights, the evidence demonstrates that Joynt's earning capacity did not diminish, but rather increased after the accident. And, while this fact alone does not necessarily preclude recovery, see Miami–Dade County. v. Cardoso, 963 So.2d 825, 828 (Fla. 3d DCA 2007), it certainly makes it more difficult for Joynt to show an economic loss. See W.R. Grace & Co.–Conn., 661 So.2d at 1303 ; Long, 458 So.2d at 394. Inasmuch as the record fails to establish Joynt's diminished earning capacity as a paraeducator, we conclude the jury's award of $500,000 in damages for loss of future earning capacity is not supported by competent, substantial evidence.⁴

Next, the County argues the trial court erred in failing to grant a directed verdict on Joynt's claim for future medical expenses. On this claim, the jury awarded $100,000 in damages. Florida law permits the recovery of "[t]he reasonable [value] [or] [expense] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the future]." Fla. Std. Jury Instr. (Civ.) 501.2(b). Florida law restricts recovery of future medical expenses to those expenses "reasonably certain" to be incurred. Loftin v. Wilson, 67 So.2d 185, 188 (Fla.1953). Therefore, "it follows that a recovery of future medical expenses cannot be grounded on the mere ‘possibility’ that certain treatment ‘might’ be obtained in the future." White v. Westlund, 624 So.2d 1148, 1150 (Fla. 4th DCA 1993) (citing 2 Damages in Tort Actions § 9.55(1), at 9–45 (1986)). Further, there must also be an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses. Loftin, 67 So.2d at 188 ("In every case, plaintiff must afford a basis for a reasonable estimate of the amount of his loss and only medical expenses which are reasonably certain to be incurred in the future are recoverable."). Some direct evidence of anticipated future medical expense is essential to a recovery because the amount of past medical expenses incurred does not—at least by itself—provide a reasonable basis for a jury to compute future medical expenses. See DeAlmeida v. Graham, 524 So.2d 666, 668 (Fla. 4th DCA 1987). It is a plaintiff's burden to establish, through competent, substantial evidence, that future medical...