GEORGE SCHORR AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANTS/CROSS APPELLEES,
v.
RONALD THAW AND ELAINE THAW, HUSBAND AND WIFE, APPELLEES/CROSS APPELLANTS
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In this vehicular negligence action, the appellate court reversed the trial court's order granting a new trial to the Thaws after they received an adverse jury verdict. The court held that the trial court erred in determining it had committed fundamental error by failing to instruct the jury on the no-fault serious injury threshold, as the issue was neither preserved at trial nor fundamental, and any error was harmless given the jury's finding of no negligence.
The court reversed the new trial order, holding that the asserted instructional error was neither preserved at trial nor fundamental in nature, and any error was harmless because the jury's finding of no negligence on the part of the defendant compelled a verdict for the defendants regardless of the omitted instruction. The court also rejected the plaintiffs' cross-appeal arguments, finding sufficient evidence supported submitting the case to the jury.
[1] A trial court's order granting a new trial based on an unpreserved and non-fundamental jury instruction error will be reversed.
[2] An asserted error in jury instructions is not fundamental if it does not relate to the issues of negligence and proximate cause that compelled a verdict for the defendant…
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Join FLexlaw to unlock all legal intelligence“The sole basis for the new trial order is the trial court's determination that it erred in failing to instruct the jury on the no-fault threshold of serious, non-permanent injury under Section 627.737(2)(e), Florida Statutes (1977). We cannot agree. The asserted error was not preserved at trial and was not fundamental in nature.”
Establishes the court's core holding that the instructional error was neither preserved nor fundamental.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRonald and Elaine Thaw sued George Schorr and State Farm Mutual Automobile Insurance Company for damages in a vehicular negligence action. The jury re…
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PER CURIAM.
The order granting a new trial for the plaintiffs Ronald and Elaine Thaw after they had suffered an adverse jury verdict in this vehicular negligence action is reversed. We reach this conclusion based on the following, briefly stated, legal analysis.
The sole basis for the new trial order is the trial court’s determination that it erred in failing to instruct the jury on the no-fault threshold of serious, non-permanent injury under Section 627.737(2)(e), Florida Statutes (1977). We cannot agree. The asserted error was not preserved at trial and was not fundamental in nature. The plaintiffs did not plead in their complaint that they had suffered a serious, non-permanent injury under the above-stated statute, presented little, if any, evidence on the issue at trial, made no motion to amend their complaint to conform to the evidence at trial, and made no request for the above-stated jury instruction. Beyond that, the error, if any, was entirely harmless.
The jury, in a special interrogatory verdict, found that there was no negligence on the part of the defendant George Schorr which was a legal cause of damage to the plaintiff herein, which finding in itself compelled a verdict for the defendants. The omitted jury instruction, on the other hand, had no relevance to this finding as the instruction had nothing to do with the negligence and proximate cause issues resolved by the above finding. The instruction, therefore, even if given, could not possibly have changed the outcome. We have no alternative, then, but to reverse the order under review as it was based on an erroneous legal ruling that fundamental error had been committed in this case. See Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319, 1322-23 (Fla. 3d DCA 1983).
We have carefully examined the points raised by the plaintiffs in their cross appeal and find them to be without merit. There was sufficient evidence presented below to send this case to the jury and the trial court did not err in denying plaintiffs’ motion for judgment in accordance with their motion for directed verdict. See Westbrook v. All Points, Inc., 384 So. 2d 973, 975 (Fla. 3d DCA 1980); Dent v. Casale, 358 So. 2d 1101, 1102-03 (Fla. 3d DCA), cert. denied, 365 So. 2d 710 (Fla.1978); Cunningham v. Romano, 278 So. 2d 681, 633 (Fla. 3d DCA), cert. denied, 285 So. 2d 19 (Fla.1973); Chowning v. Pierce, 174 So. 2d 42, 43-44 (Fla. 3d DCA 1965).
The order under review is reversed and the cause is remanded to the trial court with directions to enter judgment for the defendants herein in accord with the jury verdict returned below.
Reversed and remanded.
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Cushman & Wakefield OF Fla., Inc. v. Comreal Miami, Inc., 683 So. 2d 208 (Fla. 3d DCA 1996)…PER CURIAM. After a jury verdict against Comreal, the trial judge granted it a new trial on the ground that he had erred in charging the jury. We reverse both because the alleged error was not properly preserved at trial, see Schorr v. Thaw, 464 So. 2d 1240 (Fla. 3d DCA 1985)(preservation of objection to jury instruction applies to new trial order as well as appeal), pet. for review denied, 475 So. 2d 696 (Fla.1985); 55 Fla.Jur.2d Trial § 127 (1984); see generally Sears Roebuck & Co. v. Jackson, 433 So…
Authorities Cited
- Sears Roebuck & Co. v. Arlee Jackson and Mugge Rivers, 433 So. 2d 1319 (Fla. 3d DCA 1983)
- Chowning v. Pierce, 174 So. 2d 42 (Fla. 3d DCA 1965)
- Westbrook v. ALL Points, 384 So. 2d 973 (Fla. 3d DCA 1980)
- Dent v. Casale, 358 So. 2d 1101 (Fla. 3d DCA 1978)
- Miami Herald Publ'g Co. & the Travelers Ins. Co. v. Fernandez, 285 So. 2d 19 (Fla. 1973)