On Retrial, Defendants Cannot Dispute Liability Without Preserving Error, Holds Florida Court of Appeals

In a case involving injuries to a pedestrian, the failure of the defendants to preserve an argument at the trial court level barred the assertion of that claim upon appeal. In Witherell v. Larimer, the parties took issue with a jury verdict concerning noneconomic damages.  During trial, the jury was provided with evidence showing that one defendant was operating a vehicle when she struck the plaintiff as he crossed the street. Neither party accepted liability for the accident, with each blaming the other for the injuries the plaintiff sustained. The plaintiff asserted that the defendant driver failed to operate her vehicle in an attentive manner, while the defendants contended that the plaintiff had been using alcohol.

At the conclusion of trial, the jury deliberated as to liability and damages. Ultimately, the jury returned a verdict, holding each party equally at fault. However, the jury concluded that the plaintiff sustained a permanent injury as a result of the accident and awarded him approximately $89,000 in damages for medical expenses. With regard to noneconomic damages, the jury awarded nothing.

The trial court instructed the jury to reconcile its holding that the plaintiff suffered from a permanent injury with the fact that it awarded no pain and suffering damages whatsoever. As a result, the jury modified its award to $1 for noneconomic damages. The trial court then entered the verdict and judgment.

The plaintiff then made a motion requesting that the court alter the jury’s verdict or grant a new trial. As a basis for this argument, the plaintiff asserted that a $1 verdict for noneconomic damages was inconsistent with the jury’s finding that he suffered from a permanent injury. The defendants argued that the verdict was appropriate. However, the defendants did not address what issues should be determined should the trial court grant a new trial.

The trial court did, in fact, grant the motion for a new trial for the sole purpose of determining past noneconomic damages. The court held that, in violation of section 768.043 of the Florida Statutes, that the jury had disregarded the evidence presented at trial in making its determination.

The defendants appealed the trial court’s decision to grant a new trial solely on the basis of damages. They asserted that liability should also be determined in the new trial. The appellate court noted that the defendants had not previously raised the argument that liability should be addressed upon retrial. Well-settled Florida laws provides that a party must preserve error before a trial court in order to allow the judge to correct that error. Since the defendants had failed to do so, the Florida Court of Appeals affirmed the judgment below, ordering a new trial on the solitary issue of noneconomic damages.

If you or someone you know has suffered injuries as the result of an automobile accident, contact the Southwest Florida injury attorneys at Lusk, Drasites & Tolisano. Our lawyers have over 30 years of trial experience and are skilled advocates at the trial and appellate levels. To speak with one of our attorneys, contact us online or call toll-free at (800) 283-7442.

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Florida Appeals Court Addresses the Issue of Expert Testimony in Whiplash Case, October 30, 2014

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