Wallace v. P. L. Dodge Memorial Hospital

• Decision Date: 02 June 1981
• Docket Number: No. 79-1584,79-1584
• Parties: Cordelia WALLACE, Appellant, v. P. L. DODGE MEMORIAL HOSPITAL, Appellee.
• Court: Florida District Court of Appeals

Page 114

399 So.2d 114

Cordelia WALLACE, Appellant, v. P. L. DODGE MEMORIAL HOSPITAL, Appellee.

No. 79-1584.

District Court of Appeal of Florida, Third District.

June 2, 1981.

Podhurst, Orseck & Parks and Joel D. Eaton, Joe N. Unger, Miami, Wolfson & Diamond, Miami Beach, for appellant.

Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, for appellee.

Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

This is the second appearance of this case before this court. Three years ago, a panel of this court overturned a summary judgment entered in favor of P. L. Dodge Memorial Hospital. See Wallace v. P. L Dodge Memorial Hospital, 355 So.2d 855 (Fla.3d DCA 1978). In so doing, they held that "(t)here was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants to protect the plaintiff as an invitee of the hospital against a violent attack by one of its mental patients," see Wallace v. P. L. Dodge Memorial Hospital, supra, at 855. After remand, the case went to trial. A jury resolved that issue of fact in favor of Mrs. Wallace. The trial court, notwithstanding the verdict, entered a judgment for the hospital. Mrs. Wallace appeals from that judgment.

The evidence from which this court determined that there existed an issue of fact precluding summary judgment is indisputably the same as the evidence later presented at trial. Therefore, our ruling in 1978 established the law of the case, precluding, except in extraordinary circumstances, a contrary determination that no issue of fact existed. Myers v. Atlantic Coast Line Railroad Company, 112 So.2d 263 (Fla.1959); Geller v. 2500 Collins Corp., 130 So.2d 322 (Fla.3d DCA 1961); Lincoln National Life Insurance Company v. Roosth, 306 F.2d 110 (5th Cir. 1962) (en banc). Since the trial court's judgment is a determination contrary to the established law of the case, and since we are of the view that this case paradigmatically requires us to apply the doctrine of law of the case, we reverse.

The situation in the present case is not unlike that addressed by the Fifth Circuit Court of Appeals, sitting en banc, in Lincoln National Life Insurance Company v. Roosth, supra. There a panel of the court reversed a judgment n. o. v. entered for the defendant-insurer. See Roosth v. Lincoln National Life Insurance Company, 269 F.2d 171 (5th Cir. 1959). A retrial resulted in a verdict for the plaintiff-insured and the defendant appealed. The evidence in both trials was identical.

The panel to which the second appeal was assigned differed in its make-up from the panel which decided the first appeal. A serious question arose whether the second panel agreed with the decision of the former panel that the evidence was legally sufficient to present an issue to be decided by a jury. In light of that, the court on its own motion ordered an en banc hearing. The en banc court decided that it is precisely this kind of case which requires the application of the law of the case doctrine.

"The reconsideration of this identical record by the second panel and now by the full Court revealed another thing of equal positiveness. There are no differences among the Judges of this Court on the questions of law as such. The differences, such as they exist, relate to the facts. It is true, of course, that whether the evidence is sufficient to make out a jury case is a question of law. (citations omitted). But it is one only in relation to the particular facts of the particular case. There is no disagreement over the controlling standard, only on whether the evidence does, or does not, satisfy that standard.

"It is that absence of any disagreement on controlling legal principles and the very substantial actual sameness of the two records which leads us to the conclusion that this is a case calling imperatively for the application of the doctrine of the law of the case."

"(W)e think that when the issue resolves itself, as it does so clearly here, into a question of whether the same body of evidence is enough to permit a jury submission, neither a subsequent, second, or third, panel of this Court, nor the whole Court sitting en banc, should ordinarily undertake to review the correctness of the first decision or, doing so, arrive at a contrary conclusion...." 306 F.2d at 112, 113.

The rationale of the Fifth Circuit applies with equal force to us:

"We think that in a multi-Judge Court it is most essential that it acquire an institutional stability, by which the immediate litigants of any given case, and equally important, the bar who must advise clients or litigants in situations yet to come, will know that in the absence of most compelling circumstances, the decision on identical questions, once made, will not be re-examined and redecided merely because of a change in the composition of the Court or of the new panel hearing the case." 306 F.2d at 114.

We fully recognize that we have the power to reconsider our own rulings, notwithstanding that such rulings have become the law of the case. See Strazzula v. Hendrick, 177 So.2d 1 (Fla.1965). But that power is to be exercised only in the most compelling circumstances, only for the most cogent reasons, and only where a manifest injustice would result from strict adherence to the rule. Strazzula v. Hendrick, supra. This is not a case in which that power should be exercised. ¹ See also Goodman v. Olsen, 365 So.2d 393 (Fla.3d DCA 1979); Schempp v. Schempp, 339 So.2d 672 (Fla. 1st DCA 1976). Instead, this is simply a case where a former decision of this court is attacked as being erroneous a case for which the doctrine of the law of the case was intended. Indeed, were we to carve an exception to the law of the case doctrine here, and question the soundness of the former decision, the doctrine would be subsumed by the exception.

The cases relied upon by Judge Barkdull in his dissent correctly point out that when the evidence before the appellate court at the time it reverses a trial court's entry of summary judgment differs from the evidence ultimately developed at trial, the appellate court's holding that there are triable issues of fact does not preclude the trial court from later entering a directed verdict. ² Were we dealing here with even an arguable difference in the evidence, we would agree that the law of the case, which presupposes, in the present context, a ruling of law based on a specified set of facts, would not control. But the critical point in the present case is that the evidence concerning the number and training of the hospital's employees and staff, which was before this court when it held that it was for a jury to determine whether the number and training of hospital employees and staff were adequate, was exactly the same as the evidence presented at trial. It is precisely when that body of evidence is, as here, the same that the reasoning of Lincoln National Life Insurance Company v. Roosth, supra (a case which, incidentally, is left undisturbed by later Fifth Circuit decisions found in the dissent), controls.

We therefore hold that the law of the case, predicated on evidence identical to that presented at trial, required that the issue of the hospital's negligence be decided by a jury, prevented the trial court from entering a judgment for the hospital, and prevents us from affirming that judgment.

We must, however, affirm the trial court's alternative order granting a new trial on the ground that the verdict was contrary to the manifest weight of the evidence. No abuse of discretion in this ruling has been demonstrated, and it may not, therefore, be set aside on appeal. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Rivera v. White, 386 So.2d 1233 (Fla.3d DCA 1980); see Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975). To the extent that Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), and its progeny mandate that the trial court articulate the bases of its conclusion to grant a new trial on manifest weight grounds, ³ the order entered below fully satisfied that requirement. That order spells out the trial judge's reasons for his finding that there was no evidence at all of the defendant's liability. ⁴ Even though the law of the case compels us to disagree with that conclusion, it surely cannot be said that the court's opinion provides no record-based support for the determination that the manifest weight of the evidence was contrary to the jury's verdict. ⁵ See Robinson v. Allstate Ins. Co., 367 So.2d 708 (Fla.3d DCA 1979); Urti v. Transport Commercial Corporation, 479 F.2d 766 (5th Cir. 1973); Keystone Floor Products Co. v. Beattie Manufacturing Company, 432 F.Supp. 869 (E.D.Pa.1977). Thus, as in, e. g., Wagner v. McCormick, 153 So.2d 860 (Fla.2d DCA 1963), we reverse the judgment for the hospital, but affirm the order requiring a new trial.

Reversed in part; affirmed in part.

BARKDULL, Judge, dissenting.

I respectfully dissent from the majority opinion that finds that the trial judge committed error in the entry of the N.O.V. because of the doctrine of the "law of the case".

Following our opinion in Wallace v. P. L. Dodge Memorial Hospital, 355 So.2d 855 (Fla.3d DCA 1978), ¹ this matter reoccurred in the trial court. At the conclusion of the plaintiff's case, upon a motion for directed verdict being made, the trial court indicated he was inclined to grant it but would submit the cause to the jury, and if the jury found in favor of the plaintiff he would grant N.O.V.

Subsequently, the plaintiff received a favorable jury verdict. The jury determined that the defendant was 80% negligent and that the plaintiff was 20% negligent. The trial court also indicated that if he was in error in granting the N.O.V. he would grant a new trial, because the verdict was against the manifest weight of the evidence and the jury had...