Watson v. Builders Square, Inc.

• Decision Date: 23 May 1990
• Docket Number: No. 88-3377,88-3377
• Citation: Watson v. Builders Square, Inc., 563 So.2d 721 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D1431 Rose M. WATSON and Mark Watson, her husband, Appellants, v. BUILDERS SQUARE, INC., a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 721

563 So.2d 721

15 Fla. L. Weekly D1431

Rose M. WATSON and Mark Watson, her husband, Appellants, v.BUILDERS SQUARE, INC., a foreign corporation, Appellee.

No. 88-3377.

District Court of Appeal of Florida Fourth District.

May 23, 1990.

As Clarified on Grant of Motion

for Clarification July 11, 1990.

Walter C. Jones, IV, of Kocha & Jones, P.A. and Philip M. Burlington of Edna L. Caruso, P.A., West Palm Beach, for appellants.

G. Bart Billbrough of Walton Lantaff Schroeder & Carson, Miami, for appellee.

GARRETT, Judge.

Appellants seek a new trial.We write to address their claims as to the inadequacy of the verdict and the relevancy of their contact with an attorney.We affirm as to all other issues.

AppellantRose Watson(Mrs. Watson) went to appellee's do-it-yourself warehouse to purchase steel studs.As one of appellee's employees helped her select the right length studs, the vertical stack slid and knocked Mrs. Watson against an iron bar on the loading cart.Her injured back required surgery.

At trial appellants proved that Mrs. Watson suffered a permanent injury which affected her ability to work.Her past medical bills totalled nearly $20,000 and she needed future medical care.Appellee's counsel elicited testimony from Mrs. Watson that she had seen an attorney three days after the accident.

The jury awarded Mrs. Watson $20,000 for past medical bills, but nothing for pain and suffering, loss of earning capacity or future medical expenses.They also found that she was 90% contributorily negligent.The trial judge asked the jury to reconsider its verdict when she saw that no award had been made for appellantMark Watson's loss of consortium claim.The jury then awarded him $5,000.

We reverse and remand for a new trial as to the issue of damages.We find that only a jury of unreasonable persons would not have compensated Mrs. Watson for her pain and suffering, loss of earning capacity and future medical expenses.We can only conclude that the jury failed to consider all the elements of her damages.SeeGriffis v. Hill, 230 So.2d 143(Fla.1970).As we stated in Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808(4th DCA1990)(quotingRivera v. Aldrich, 538 So.2d 1390, 1392(Fla. 3d DCA1989)), "it is more than merely conceivable that the jury 'interwove the issues and liability and damages on the jury form in an inconsistent way, suggestive of a compromise on liability, possible confusion on the law of damages, or both.' "Id.560 So.2d at 810.

We also reverse and remand for a new trial as to the issue of liability.As in this case, when a damage award is clearly inadequate and the issue of liability is hotly contested, such circumstances give rise to a suggestion that the jury may have compromised its verdict.SeeTimmy Wood Beverly Hills, Ltd. v. Greenwald, 475 So.2d 256, 257(Fla. 3rd DCA1985).We adopt the language of our sistercourt in 1661 Corporation v. Snyder, 267 So.2d 362, 364(Fla. 1st DCA1972):

To grant a new trial on the issue of damages alone, it must appear that on the evidence adduced at trial the liability of the defendant was unequivocally established without substantial dispute and the inadequacy of the verdict was induced by misconception of the law or the failure of the jury to consider all of the elements of damages submitted, and not as a result of a compromise on the issue of liability.

We find that the trial judge abused her discretion when she admitted evidence of the Watsons' post accident contact with their attorney.The evidence was irrelevant and should be excluded at the retrial as no basis exists for appellee to prove appellants' litigiousness.Cf.Zabner v. Howard Johnson's Inc. of Fla., 227 So.2d 543(Fla. 4th DCA1969)(reversible error to admit evidence of fifteen prior lawsuits).

Accordingly, we reverse and remand consistent with this opinion for a new trial as to the issues of liability and damages.

GUNTHER and POLEN, JJ., concur.

ON MOTION FOR CLARIFICATION

ORDERED that appellants' motion for clarification is granted.The "[w]e affirm as to all other issues" part of our May 23, 1990 opinion is clarified as follows:

We affirmed as to appellants' Point I on appeal for several reasons.

F.S. 90.407

The trial judge did not commit reversible error when, pursuant to Section 90.407, Florida Statutes(1989), she excluded the following deposition testimony of Gary Spardello offered by appellants:

Q: Was there a chain or series of chains that was used to hold them [the metal studs] in place?

A: Yes, after; we put up a chain after the incident.

Q: After the incident.

A: Yes.

IMPROPER IMPEACHMENT

Even if admissible as an exception to section 90.407, as stated inErp v. Carroll, 438...