TAMEKIA LOVE DORVIL, A MINOR, BY AND THROUGH HER FATHER, JEAN DORVIL, AND JEAN DORVIL, INDIVIDUALLY, APPELLANTS,
v.
PUROLATOR COURIER CORP., A NEW YORK CORPORATION, AND CHERYL EVETTE TRIPLETT, APPELLEES

Fla. 3d DCA | 1991-02-19
Nos. 89-1172, 89-1457
Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.
578 So. 2d 294 Florida District Court of Appeal, Third District (1991) Positive Treatment
Cited by 6 cases

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Synopsis

In a negligence action arising from a motor vehicle-pedestrian accident, the appellate court affirmed the trial court's finding of liability against the defendant but reversed the damage award for the minor plaintiff, finding that $55,000 was grossly inadequate compensation for severe orthopedic injuries requiring future corrective surgery.


Holding

The $55,000 damage award for orthopedic injuries was grossly inadequate and the case must be remanded for a new trial on damages for these injuries. However, the trial court properly found that cognitive deficits were not caused by the accident and properly excluded cumulative rebuttal testimony. The judgment as to the adult plaintiff Jean Dorvil was affirmed.


Headnotes

[1] A damage award may be deemed grossly inadequate when it is insufficient given the purchasing power of today's dollar and the severity of undisputed injuries.

[2] In a non-jury case, a motion for a new trial attacking the adequacy of damages is unnecessary to preserve the issue for appellate review when the trial court has already…

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Key Quotes

“Such an award, given the purchasing power of today's dollar, was a grossly inadequate amount for the severe, undisputed orthopedic injuries which the minor plaintiff suffered in this accident due to the defendant Cheryl Evette Triplett's conceded negligence.”

Establishes the court's core holding that the damage award was grossly inadequate despite defendant's conceded negligence

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Facts & Procedural History

A six-year-old girl (Tamekia Love Dorvil) was struck by a vehicle driven by Cheryl Evette Triplett. The minor plaintiff sustained fractures to her lef…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the plaintiffs, Tamekia Love Dorvil, a minor, by and through her father, Jean Dorvil, and Jean Dorvil, individually, from a final judgment entered in their favor after a non-jury trial in a negligence action arising out of a motor vehicle-pedestrian accident. We reverse the final judgment only insofar as it awarded $55,000 in damages for the minor plaintiff Tamekia Love Dorvil and remand the cause to the trial court for a new trial on damages solely as to the said minor’s orthopedic injuries. In our view, such an award, given the purchasing power of today’s dollar, was a grossly inadequate amount for the severe, undisputed orthopedic injuries which the minor plaintiff suffered in this accident due to the defendant Cheryl Evette Triplett’s conceded negligence. We reach this result based on the following undisputed facts in this case:

1. The minor plaintiff, a six-year-old girl, sustained fractures to her left forearm and right upper arm, as well as a fracture of her right leg which required the placement of a metal pin above the right knee to promote healing — all with accompanying severe pain and discomfort;

2. The minor plaintiff was hospitalized for over a month and a half, during which time she spent fifteen days in the intensive care unit and five days entirely uncon scious, was placed in traction with a full cast to her right leg, and suffered severe pain and discomfort;

3. The minor plaintiffs right leg is now three-quarters to one-inch shorter than her left leg as a result of the accident — a condition which is correctable (with an 80% chance of success) through an operative procedure which will require five-to-fourteen days of hospitalization, four weeks on crutches, and six months of post-operative physical therapy, all with accompanying pain and discomfort; and

4. The minor plaintiff was assigned a 10% permanent impairment rating to her right leg and a 4% permanent impairment rating for the body as a whole. See Anastasio v. Summersett, 217 So. 2d 854 (Fla. 4th DCA 1969); Simpson v. Clay, 139 So. 2d 494 (Fla. 2d DCA 1962); Stiso v. Piccarello, 120 A.D.2d 516, 501 N.Y.S.2d 715, 716 (1986); cf. Cardenas v. Miami-Dade Yellow Cab Co., 538 So. 2d 491, 493 (Fla. 3d DCA), rev. dismissed, 549 So. 2d 1013 (Fla.1989); Pratt v. Susquehanna Valley Central School Dist., 62 A.D.2d 1118, 404 N.Y.S.2d 435, 437 (1978).

Moreover, we reject the defendants’ contention that a motion for new trial attacking thé adequacy of the damages was required in order to preserve this point for appellate review. Such a motion was entirely unnecessary in this non-jury case because (a) the trial court had already passed upon this issue when it awarded the inadequate damages herein, and (b) the plaintiffs are essentially attacking the sufficiency of the record evidence to support the award made. See Hall v. Wilson, 530 So. 2d 410, 411 n. 1 (Fla. 3d DCA 1988); Fla.R.Civ.P. 1.530(e); see also Ex parte Kirkley, 418 So. 2d 118 (Ala.1982).

We agree, however, with the defendants as to the balance of the plaintiffs’ contentions on appeal. Plainly, the trial court was entitled to find, based on conflicting evidence, that the minor plaintiff’s cognitive deficits were not caused by the accident sued upon, as such deficits predated the subject accident. Beyond that, the trial court properly precluded the plaintiffs from calling a doctor as a rebuttal witness because the doctor’s testimony did not constitute proper rebuttal and was, in any event, cumulative. See Laurent v. Uniroyal, Inc., 515 So. 2d 1050, 1051 (Fla. 3d DCA 1987), rev. denied, 525 So. 2d 879 (Fla.1988); Dale v. Ford Motor Co., 409 So. 2d 232, 234 (Fla. 1st DCA 1982); Driscoll v. Morns, 114 So. 2d 314, 315 (Fla. 3d DCA 1959).

The final judgment as to the plaintiff Jean Dorvil, individually, is affirmed. The final judgment as to the minor plaintiff Tamekia Love Dorvil is affirmed as to the finding of liability and the rejection of any cognitive-deficit damages for the said plaintiff; this judgment, however, is reversed as to the award of damages for the minor plaintiff’s orthopedic injuries and the cause is remanded to the trial court for a new trial on damages as to the minor plaintiff’s orthopedic injuries.

Affirmed in part; reversed in part.


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Citator

Cited By

  • Dyes v. Spick, 606 So. 2d 700 (Fla. 1st DCA 1992)
    …iewing court has an obligation to act in cases where the verdict is grossly inadequate. Weaver v. Wilson, 532 So. 2d 67 (Fla. 1st DCA 1988); Diaz v. Xtra Super Food Centers, Inc., 579 So. 2d 893 (Fla. 3d DCA 1991); Dorvil v. Purolator Courier Corp., 578 So. 2d 294 (Fla. 3d DCA 1991); Tarin v. City Nat’l Bank of Miami, 557 So. 2d 632 (Fla. 3d DCA 1990). In a recent case, the Third District concluded that awards of $5,000.00 for past and $5,000.00 for future noneconomic damages were shockingly inadequate in th…
  • Diaz v. Xtra Super Food Ctrs., Inc., 579 So. 2d 893 (Fla. 3d DCA 1991)
    …r all the other damage items, including the intangibles — was grossly inadequate to compensate Mrs. Diaz for the permanent and serious injury she undeniably suffered. See Griffis v. Hill, 230 So. 2d 143 (Fla.1969); Dorvil v. Purolator Courier Corp., 578 So. 2d 294 (Fla. 3d DCA 1991); Powers v. Johnson, 562 So. 2d 367 (Fla. 2d DCA 1990), review dismissed, 570 So. 2d 1304 (Fla.1990); Goff v. 392208 Ontario Ltd., 539 So. 2d 1158 (Fla. 3d DCA 1989). On that basis, the cause is remanded for a new trial on damages…
  • Garcia v. Carter Constr. Co., 794 So. 2d 723 (Fla. 3d DCA 2001)
    …trial, the trial court entered final judgment for Garcia in the amount of $4,279. The final judgment did not contain any findings of fact or analysis.1 We reverse and remand for a new trial on damages only. See Dorvil v. Purolator Courier Corp., 578 So. 2d 294 (Fla. 3d DCA 1991) (holding that a motion for new trial challenging the adequacy of damage award is not required to preserve issue for review where plaintiffs essentially attacking sufficiency of evidence to support the award). The trial court’s fai…

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