JAMES MCCLOUD AND SHARON MCCLOUD, HIS WIFE, APPELLANTS,
v.
SHERMAN MOBILE CONCRETE CO., INC., A CORPORATION, APPELLEE

Fla. 2d DCA | 1991-05-03
No. 90-01196
SCHEB and THREADGILL, JJ., concur.
579 So. 2d 773 Florida District Court of Appeal, Second District (1991) Positive Treatment
Cited by 17 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The appellants sought a new trial on damages after a jury returned a zero damages verdict despite finding the defendant negligent and the plaintiff injured. The court reversed, holding that while conflicting evidence on permanent injury could support a reduced damages award, there was no credible evidence to support zero damages when medical bills, lost wages, and pain and suffering were documented.


Holding

The court reversed and remanded for a new trial on damages. While conflicting evidence concerning permanent injuries could support reduced damages, there was no credible evidence to contradict proof of sustained injuries, reasonable medical bills, lost wages, and pain suffered, making a zero damages verdict inadequate and inconsistent with the manifest weight of the evidence.


Headnotes

[1] A trial court's ruling on a motion for a new trial should not be disturbed unless there is a clear showing of abuse of discretion.

[2] A trial judge must grant a motion for a new trial when the jury's verdict fails to comport with the manifest weight of the evidence.

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Key Quotes

“The trial judge has the duty to grant such a motion, however, where the jury has been influenced by extraordinary considerations, misled by the force and credibility of the evidence, or when the verdict, as in this case, fails to comport with the manifest weight of the evidence.”

Establishes the legal standard for granting a new trial motion based on verdict inconsistency with evidence weight

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Facts & Procedural History

James McCloud was injured when a walkway collapsed, causing him to fall five feet into water. Medical evidence showed he incurred $9,965.66 in medical…

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Opinion of the Court
SCHOONOVER, Chief Judge.

SCHOONOVER, Chief Judge.

The appellants, James McCloud and Sharon McCloud, challenge the denial of their motion for a new trial on damages filed after a jury returned a verdict of zero damages in their personal injury action against the appellee, Sherman Mobile Concrete Company, Inc. We reverse.

The appellants filed a negligence action against the appellee for injuries Mr. McCloud sustained when a walkway he was using collapsed and caused him to fall five feet into the water. In addition to Mr. McCloud’s claim for medical expenses, disability, past and future wages, and pain and suffering, Mrs. McCloud sought damages for loss of her husband’s services, society, and consortium. At the conclusion of a jury trial, the jury returned a special verdict finding negligence on the part of the appellee which was the legal cause of the accident.

The jury also found negli gence on the part of Mr. McCloud.

The jury found that Mr. McCloud and the appel-lee were each fifty per cent responsible and that neither Mr. McCloud nor Mrs. McCloud had sustained any damages as a result of the incident. The appellants’ motion for a new trial on the issue of damages was denied, and the appellants filed a timely notice of appeal from the judgment entered on the basis of the jury’s verdict.

A motion for new trial is directed to the sound, broad discretion of the trial judge, who, because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based, is better positioned than any other one person to fully comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached. Cloud v. Fallis, 110 So. 2d 669 (Fla.1959).

His ruling on a motion for a new trial, accordingly, should not be disturbed in the absence of a clear showing that such discretion has been abused. The trial judge has the duty to grant such a motion, however, where the jury has been influenced by extraordinary considerations, misled by the force and credibility of the evidence, or when the verdict, as in this case, fails to comport with the manifest weight of the evidence. Surety Mortgage, Inc. v. Equitable Mortgage Resources, Inc., 534 So. 2d 780 (Fla. 2d DCA 1988).

At trial, several physicians testified that Mr. McCloud was injured as a result of the accident and medical bills totaling $9,965.66 were introduced into evidence. Evidence was presented concerning lost wages and past and future pain and suffering. Mrs. McCloud’s testimony concerning her loss of consortium claim was substantial, undisputed, and unrebutted.

Dr. Donald Sullivan, an orthopedic surgeon, examined Mr. McCloud more than two years after the accident and testified that in his opinion, Mr. McCloud did not sustain any permanent injury as a result of the accident. Although this evidence conflicted with other medical testimony, it was sufficient to support a finding that Mr. McCloud was not entitled to damages for future pain or suffering or future loss of income. It was not, however, sufficient to support a verdict for zero damages. Where there is conflicting evidence concerning damages and reasonable men could believe that the plaintiff sustained no damages, a zero verdict will be upheld. See Boeck v. Diem, 245 So. 2d 687 (Fla. 2d DCA 1971).

In this case, however, there was no credible evidence submitted to contradict the evidence that Mr. McCloud sustained injuries as a result of the incident, that he incurred reasonable and necessary medical bills as a result of those injuries,1 and that he lost wages and suffered pain from them.

The jury verdict was, accordingly, inadequate, and we must reverse for a new trial on the issue of Mr. McCloud’s damages and Mrs. McCloud’s consortium claim. Lofley v. Insultech, Inc., 527 So. 2d 902 (Fla. 2d DCA 1988); Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984); Hector v. Florida Farm Bureau Mut. Ins. Co., 364 So. 2d 1253 (Fla. 2d DCA 1978).

Reversed and remanded for a new trial on the issue of damages.

SCHEB and THREADGILL, JJ., concur. . The appellee in its answer brief states that "as a result of this fall on August 10, 1987, Mr. McCloud was examined and treated by a number of physicians.”


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Citator

Cited By

  • Cowen v. Thornton, 621 So. 2d 684 (Fla. 2d DCA 1993)
    …and entered final judgment in favor of Thornton. We conclude that the failure to grant a new trial was error. The proper method to challenge an inadequate verdict is to file a motion for new trial. See, e.g., McCloud v. Sherman Mobile Concrete Co., 579 So. 2d 773 (Fla. 2d DCA 1991); State Farm Mut. Ins. Co. v. Howard, 458 So. 2d 874 (Fla. 2d DCA 1984). Generally a plaintiff cannot be awarded zero damages when he has suffered some damages from the negligence of the defendant. McCloud; Howard. When a damage aw…
  • …‘the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.’ ” Brown, 749 So. 2d at 497 (quoting Cloud, 110 So. 2d at 673); see also McCloud v. Sherman Mobile Concrete Co., 579 So. 2d 773, 774 (Fla. 2d DCA 1991); Surely Mortgage Inc. v. Equitable Mortgage Res., Inc., 534 So. 2d 780, 782 (Fla. 2d DCA 1988). Under those circumstances, “[t]he trial judge’s discretion permits the grant of a new trial although it is not clear, obvious, an…
  • Nadia Bach and Ronald Carter v. Murray, 658 So. 2d 546 (Fla. 3d DCA 1995)
    …sonable jurors could believe that the plaintiff sustained no damages, a zero verdict will be upheld. Steinbauer Assoc. Inc. v. Smith, 599 So. 2d 746, 748 (Fla. 3d DCA), rev. denied, 606 So. 2d 1166 (Fla.1992); McCloud v. Sherman Mobile Concrete Co., 579 So. 2d 773, 774 (Fla. 2d DCA 1991). Where in this case, however, there is undisputed evidence that Bach sustained some damages as a result of Murray’s negligence, the law is well settled that the jury cannot reasonably return a verdict for zero damages and tha…

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