NATHANIEL WHITE, SR., APPELLANT,
v.
MASSINA ARVANITIS AND ALLSTATE INSURANCE COMPANY, APPELLEES
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The court held that the trial court erred in directing a verdict against the plaintiff because the evidence presented was sufficient to meet the statutory threshold for recovery of damages.
[1] A plaintiff may recover damages in tort for a serious, nonpermanent injury if the injury has a material bearing on the ability to resume normal activity and lifestyle dur…
[2] "Medically or scientifically demonstrable" requires a showing of objective signs of injury rather than solely subjective statements of pain.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff suffered injuries in an automobile accident and sued for personal injury. The trial court directed a verdict against the plaintiff, find…
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SHAW, Judge.
This is an appeal from a directed verdict rendered against the plaintiff/appellant in a personal injury action predicated upon the court’s finding that the appellant failed to meet the threshold requirements of section 627.737(2)(e), Florida Statutes (1977). We disagree with the trial court’s application of the statute and reverse.
Under section 627.737(2)(e) a plaintiff may recover damages in tort if he shows:
A serious, nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90-day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.
Appellant suffered moderately severe cervical and mild lumbrosacral strains as a result of a June 8, 1978, automobile accident. Range of motion tests administered by his treating physician, Dr. Fuessner, shortly before and after the ninety-day statutory period indicated a normal range of motion but continued pain on rotation of the head to the left. The doctor testified that this continued pain was consistent with his diagnosis of cervical strain. Dr. Fuessner testified that in his opinion the appellant had a continuing medical problem resulting from his injury and was not malingering. When queried as to whether the appellant’s injuries would affect his ability to perform his duties as a mail carrier and his lifestyle generally for at least ninety days following the injury, the doctor replied: Yes, I believe that the injury that he had was significant enough to interfere with his usual activities and in his particular occupation it could very easily interfere with his work and the length of time involved, 90 days, is frequently encountered as a period of time when people have difficulty from this type of neck injury. So it’s not unusual for someone to go that long with symptoms from this type of neck injury.
Record on Appeal at 130-131. The trial court nonetheless found that the appellant produced insufficient evidence of medically or scientifically demonstrable signs of injury at the end of the statutory ninety-day period.
This Court has interpreted “medically or scientifically demonstrable” to require a showing of objective signs of injury rather than subjective statements of pain. Howard v. Newman, 363 So. 2d 65 (Fla. 1st DCA 1978). We found the Howard test satisfied when the straight leg raising test, a standard medical procedure, was used to substantiate the patient’s subjective complaint of pain. Snowden v. Sprouse, 375 So. 2d 901 (Fla. 1st DCA 1979). The point at which Mr. Snowden’s test indicated pain was consistent with the physician’s diagnosis of low back strain.
Dr. Fuessner based his diagnosis in the present case on more than the appellant’s subjective complaints of pain. The doctor administered a range of motion test and found that pain on rotating appellant’s neck to the left was consistent with the injury appellant sustained and could very easily have interfered with his lifestyle and work for the ninety-day statutory period. We have here more than the unsubstantiated testimony of the plaintiff/appellant that he had residual pain at a certain time. In addition to the appellant’s statement, we have the medical testimony of a doctor that, in his opinion, based upon a medically approved test, the appellant’s complaint of pain was consistent with and likely to occur with the type of injury he sustained.
Upon reviewing the order granting a directed verdict, we must consider the evidence in the light most favorable to the party moved against and indulge every reasonable inference on that party’s behalf. Bradley v. Peaden, 347 So. 2d 455 (Fla. 1st DCA 1977). A verdict should not be directed for the defendant at the close of the plaintiff’s evidence unless it is clear that there is no evidence whatever that could in law support a verdict for the plaintiff. If there is room for a difference of opinion between reasonable persons as to the inferences that might be drawn from conceded facts, the matter should be submitted to a jury. Budgen v. Brady, 103 So. 2d 672, 674 (Fla. 1st DCA 1958). Applying these standards to the present case, a jury could find that appellant’s injury was medically demonstrable at the end of the ninety-day period. Consistent with our belief that a jury question was presented on the question of whether the appellant satisfied the threshold requirement of the statute, we reverse and remand for further proceedings.
REVERSED and REMANDED.
LARRY G. SMITH and JOANOS, JJ., concur.
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Emmons v. Baptist Hosp. & Servicemaster Indus., Inc., 478 So. 2d 440 (Fla. 1st DCA 1985)…trial court to direct a verdict must be exercised with caution and that a verdict should not be directed for a defendant unless it is clear that there is no evidence whatever that could in law support a verdict for the plaintiff. White v. Arvanitis, 424 So. 2d 886, 888 (Fla. 1st DCA 1982); Budgen v. Brady, 103 So. 2d 672, 674 (Fla. 1st DCA 1958). Nevertheless, a defendant is entitled to a directed verdict when it is clearly apparent that no evidence has been submitted on which the jury could lawfully find a v…
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City OF Jacksonville v. Melonise Alexander, 487 So. 2d 1144 (Fla. 1st DCA 1986)…e jury. A directed verdict should not be granted unless the evidence is such that under no view which the jury might lawfully take of the evidence favorable to the adverse party could a verdict for the latter party be sustained. White v. Arvanitis, 424 So. 2d 886 (Fla. 1st DCA 1982). Here, the denial of the motion was proper as, if the jury believed Alexander’s version of the facts, i.e., that the officer arrested her in the absence of store merchandise and without any other reliable information that she had…
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City OF Milton v. Broxson, 514 So. 2d 1116 (Fla. 1st DCA 1987)…trial court to direct a verdict must be exercised with caution and that a verdict should not be directed for a defendant unless it is clear that there is no evidence whatever that could in law support a verdict for the plaintiff. White v. Arvanitis, 424 So. 2d 886, 888 (Fla. 1st DCA 1982); Budgen v. Brady, 103 So. 2d 672, 674 (Fla. 1st DCA 1958). We conclude that the trial court did not err in denying the motions for directed verdict on the grounds asserted by it that there was no breach of duty by it to the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Budgen v. Brady, 103 So. 2d 672 (Fla. 1st DCA 1958)
- Lillie G. Howard and Landley v. Howard, 363 So. 2d 65 (Fla. 1st DCA 1978)
- Snowden v. Sprouse, 375 So. 2d 901 (Fla. 1st DCA 1979)
- Bradley v. Reuben W. Peaden, 347 So. 2d 455 (Fla. 1st DCA 1977)