SOUTHEASTERN INCOME PROPERTIES, ETC., APPELLANT/CROSS-APPELLEE,
v.
NELL TERRELL, ET. UX., APPELLEES/CROSS-APPELLANTS
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Nell Terrell fell in an Econo Lodge parking lot and recovered damages from the property owner, but the trial court ordered a new trial on damages based on an alleged inconsistent jury verdict. The appellate court reversed, holding that any inconsistency in the verdict form was waived because trial counsel failed to timely object to the verdict form or bring the apparent deficiency to the trial court's attention before the jury was discharged.
The appellate court reversed and reinstated the jury verdict, holding that any deficiency in the verdict was waived because trial counsel failed to timely object to the verdict form before it was submitted to the jury or to bring the apparent inconsistency to the trial court's attention before the jury was discharged. The court also held that the jury's failure to award the husband future loss of consortium was not an inconsistent verdict.
[1] A jury verdict is not rendered inconsistent by a failure to award damages for past lost earnings when the verdict form combines medical expenses and past lost earnings, a…
[2] An alleged error in a jury verdict form is waived if not raised with the trial court before the jury is discharged.
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“The fault must be ... placed upon the ... trial attorney who led the court into error by approving, or failing to object to, the form of the verdict before it was submitted to the jury.”
Establishes that trial counsel's failure to object to the verdict form is the source of fault, not the jury's verdict itself.
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Join FLexlaw to unlock all legal intelligenceNell Terrell fell in the parking lot of an Econo Lodge Motel owned by appellant Southeastern Income Properties. She sued and recovered damages. The ju…
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HARRIS, Judge.
Nell Terrell fell in the parking lot of an Econo Lodge Motel owned by appellant. She sued and recovered an unsatisfactory amount of damages. She objected, and the trial court agreed, that the jury verdict was inconsistent. A new trial was ordered on the issue of damages. We reverse.
There is no contention that the jury erred in assessing Mrs. Terrell’s future lost earnings, pain and suffering, future pain and suffering or the past lost consortium suffered by Mr. Terrell. The urged inconsistency is that the jury, although awarding future lost earnings, awarded no past lost earnings. This is because the interrogatory verdict combined “medical expenses and past lost earnings” in the same catego ry.1 Since the amount awarded, $1,500, was the stipulated “medical expenses,” it follows that no amount was awarded for past lost earnings. But this is not the same as a -0-verdict. It appears that the jury, after awarding medical expenses, merely overlooked the additional damages to be considered in that category. In other words, instead of a -0-verdict, there was a blank verdict.
This problem was caused by the form of the verdict and was readily apparent on the face of the verdict as soon as it was returned.
This case is controlled by Keller Industries, Inc. v. Morgart, 412 So. 2d 950, 951 (Fla. 5th DCA 1982):
The fault must be ... placed upon the ... trial attorney who led the court into error by approving, or failing to object to, the form of the verdict before it was submitted to the jury. Trial counsel also failed to bring the inconsistent verdicts to the attention of the trial court before the jury was discharged thus preventing the timely correction of the problem by the trial judge [and jury]. For all we know, ... trial counsel intentionally, for tactical reasons, chose not to bring the problem to the court’s attention.
In the present case, the jury, after hearing the entire trial, found Mrs. Terrell 80% negligent and awarded her modest damages. The omission complained of here, if timely raised and with proper instructions, could have been easily cured by that jury. By not timely raising the error in the verdict, it is waived.
We do not agree that the jury’s failure to award the husband damages for future loss of consortium, even though they awarded past lost consortium and found some future pain and suffering for the wife, to be inconsistent verdicts.
In this case the wife was 68 years old and was suffering results of two recent knee operations at the time of the accident. Based on evidence presented, the jury could have found that the 81 year old husband, if he suffered future loss of consortium, could not prove that such loss was caused by the accident. In other words, the jury is not required to find that any pain and suffering must equate with loss of consortium.
REVERSED with instructions to reinstate the jury verdict.
COBB and GRIFFIN, JJ., concur. . Even though this is an approved form, its inadequacy is apparent on its face as evident from the verdict rendered in this case.
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Perry v. Allen, 720 So. 2d 614 (Fla. 1st DCA 1998)…dict before jury discharged, where jury found seat belt manufacturer did not place seat belt on market with defect but found negligence on part of manufacturer in failing to warn of later-appearing defect); Southeastern Income Properties v. Terrell, 587 So. 2d 670 (Fla. 5th DCA 1991) (finding that appellant waived argument regarding error in verdict, i.e., “that the jury, although awarding future lost earnings, awarded no past earnings,” because it was not timely brought to trial court’s attention); Alamo Ren…
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Nava Hendelman v. Lion Country Safari, Inc., 609 So. 2d 766 (Fla. 4th DCA 1992)…37 (Fla. 4th DCA 1992); Moorman v. Am. Safety Equip., 594 So. 2d 795 (Fla. 4th DCA1992); Robbins v. Graham, 404 So. 2d 769 (Fla. 4th DCA 1981); Undquist v. Covert, 279 So. 2d 44 (Fla. 4th DCA1973). See also Southeastern Income Properties v. Terrell, 587 So. 2d 670 (Fla. 5th DCA1991). It follows that a party may not circumvent these cases by later arguing the verdict is inadequate or contrary to the manifest weight of the evidence. It also seems logical that in most cases an inconsistent verdict would be eithe…
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Bird v. Ferdinand, 623 So. 2d 1253 (Fla. 5th DCA 1993)…PER CURIAM. AFFIRMED. See Smith v. Houston, 551 So. 2d 551 (Fla. 2d DCA 1989), review denied, 564 So. 2d 1086 (Fla.1990); Stapleton v. Bisignano, 605 So. 2d 1010 (Fla. 4th DCA 1992). See also Southeastern Income Properties v. Terrell, 587 So. 2d 670 (Fla. 5th DCA 1991). GOSHORN, GRIFFIN and DIAMANTIS, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Keller Indus., Inc. v. Morgart, 412 So. 2d 950 (Fla. 5th DCA 1982)
- Polk v. State, 412 So. 2d 950 (Fla. 3d DCA 1982)