KEVIN MORRIS MASSEY, A MINOR, BY AND THROUGH PHILLIP H. MASSEY, HIS FATHER, AND PHILLIP H. MASSEY, INDIVIDUALLY, APPELLANTS,
v.
MARTHA NETSCHKE AND GERALDINE BUTLER ASHE, APPELLEES
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In this negligence case arising from a motorcycle-automobile collision, the court reversed the trial court's denial of a new trial motion, finding that a zero-damage verdict was grossly inadequate as a matter of law despite jury findings of defendant's negligence. The appellate court held that a new trial on damages only was warranted because the liability verdict was supported by the record.
The court held that a zero-damage verdict is grossly inadequate as a matter of law and subject to challenge via motion for new trial even without a contemporaneous objection. The liability verdict was clearly supported by the record and need not be retried; only a new trial on damages was required.
[1] A jury verdict awarding zero damages to a plaintiff, despite a finding of liability against the defendant, may be challenged as inadequate based on the evidence presented…
[2] A motion for a new trial is the appropriate procedural mechanism to challenge a jury's zero damage verdict as legally inadequate.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a zero damage verdict for the plaintiff, even when coupled with a finding of liability against the defendant, may be tested for inadequacy in the light of the evidence of the case raised, as here, only by an appropriate (and required) motion for new trial on these grounds”
Establishes that zero-damage verdicts with liability findings are reviewable for adequacy and need not be challenged immediately at trial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe minor plaintiff suffered serious and permanent injuries in a collision with defendant Mrs. Ashe's automobile, including a fractured thoracic spine…
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GOLDMAN, MURRAY, Associate Judge.
This is an appeal from an order denying plaintiffs’ motion for a new trial.
Plaintiffs brought suit for damages resulting from an accident in which the minor plaintiff was seriously and permanently injured when the motorcycle he was driving collided with an automobile driven by the defendant Mrs. Ashe.
The minor plaintiff fractured his thoracic spine; suffered four fractures of his right arm and wrist; had a broken toe and contusions and abrasions. He was hospitalized twice while doctors installed two metal plates in his forearm, which plates were still in his arm at the time of the trial. He was confined to bed for two to three months and had medical bills in excess of $15,000.00. The treating doctor assigned a permanent injury rating of 22 percent of the body as a whole, and the defendant’s doctor assigned a 10 percent permanency rating.
The jury found the defendant 25 percent negligent, the minor plaintiff 25 percent negligent, and the minor’s father 50 percent negligent, and awarded zero damages to the minor plaintiff and his father. Plaintiff’s motion for new trial was denied, and this appeal was timely filed.
Plaintiff’s argue that the verdicts were grossly inadequate as a matter of law. We agree and reverse. Griffis v. Hill, 230 So. 2d 143 (Fla.1969); Taylor v. Ganas, 443 So. 2d 251 (Fla. 1st DCA 1983); Shelly v. Hartford Casualty Insurance Co., 445 So. 2d 415 (Fla. 4th DCA 1984); State Farm Mutual Automobile Insurance Co. v. Howard, 458 So. 2d 874 (Fla. 2d DCA 1984).
Defendants argue that a new trial should not be granted since plaintiffs did not object or request resubmission of the case to the jury after the verdicts were rendered. Defendants have confused an inconsistent verdict with an inadequate verdict. See Cowart v. Kendall United Methodist Church, 476 So. 2d 289, 291 (Fla. 3d DCA 1985), wherein Judge Schwartz states: “[A] zero damage verdict for the plaintiff, even when coupled with a finding of liability against the defendant, may be tested for inadequacy in the light of the evidence of the case raised, as here, only by an appropriate (and required) motion for new trial on these grounds.”
Defendant further argues that if a new trial is required, the trial should be on both issues of liability and damages. We disagree. The liability issue is clearly separate from the damage issue in this trial. The liability verdict was clearly supported by the record. Cedars of Lebanon Hospital Corp. v. Silva, 476 So. 2d 696 (Fla. 3d DCA 1985); Shelly v. Hartford Casualty Ins. Co.; Parks v. Ralston Construction Co., 338 So. 2d 65 (Fla. 3d DCA 1976).
The order denying plaintiff’s motion for new trial is reversed and the cause remanded for a new trial on the issue of damages only.
GLICKSTEIN and GUNTHER, JJ., concur.
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Griefer v. DiPIETRO, 625 So. 2d 1226 (Fla. 4th DCA 1993)…f damages by the jury nor did it inflame the jury. Thus, in line with Florida East Coast Railway Co. v. Griffin, 566 So. 2d 1321 (Fla. 4th DCA 1990); Coastal Towers Condominium Ass’n v. Trainer, 509 So. 2d 351 (Fla 4th DCA 1987); Massey v. Netschke, 504 So. 2d 1376 (Fla. 4th DCA 1987), we now hold that a reversal for a new trial on damages is not appropriate where the error complained of affects only the issues of liability. We have also reexamined the appellant’s claim that the trial court should have grant…
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Progressive Select Ins. Co., Inc. v. Lorenzo, 49 So. 3d 272 (Fla. 4th DCA 2010)…2004) (acknowledging confusion in the case law concerning verdicts that are both inconsistent and inadequate). This is especially true in the area of no fault litigation and with the advent of special interrogatory verdict forms. Massey v. Netschke, 504 So. 2d 1376, 1377 (Fla. 4th DCA 1987) (finding that the “[defendants have confused an inconsistent verdict with an inadequate verdict”). What might appear as an inconsistent verdict may actually be an excessive or inadequate verdict. The confusion has in part o…
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Nava Hendelman v. Lion Country Safari, Inc., 609 So. 2d 766 (Fla. 4th DCA 1992)…s court reversed in Berez because the trial court erred when it recalled the jury to correct the verdict after the jury had been discharged. The dicta does not conform to the cases cited in support of this concurring opinion. In Massey v. Netschke, 504 So. 2d 1376 (Fla. 4th DCA 1987), this court recognized that a difference exists between an inadequate verdict and an inconsistent verdict: Defendants argue that a new trial should not be granted since plaintiffs did not object or request resubmission of the ea…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffis v. Hill, 230 So. 2d 143 (Fla. 1969)
- Cowart v. Kendall United Methodist Church & Atl. Mut. Ins. Co., 476 So. 2d 289 (Fla. 3d DCA 1985)
- Skelly v. Hartford Cas. Ins. Co. & Publix Super Mkts., Inc., 445 So. 2d 415 (Fla. 4th DCA 1984)
- Taylor v. Ganas, 443 So. 2d 251 (Fla. 1st DCA 1983)
- Cedars OF Lebanon Hosp. Corp. v. Orlando Silva, M.D., 476 So. 2d 696 (Fla. 3d DCA 1985)
- Parks v. Ralston Constr. Co., 338 So. 2d 65 (Fla. 3d DCA 1976)
- State Farm Mut. Auto. Ins. Co. & John E. Wilkerson v. Howard, 458 So. 2d 874 (Fla. 2d DCA 1984)