LOUIS NUTA AND BETTY NUTA, D/B/A NUTA'S BOAT YARD, APPELLANTS,
v.
SIDNEY J. GENDERS AND LODIE GENDERS, HIS WIFE, APPELLEES

Fla. 3d DCA | 1993-03-30
No. 92-620
Before COPE, LEVY and GODERICH, JJ.
617 So. 2d 329 Florida District Court of Appeal, Third District (1993) Caution
Cited by 12 cases

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Holding

The court held that while there was sufficient evidence to support the jury's finding of negligence, there was insufficient evidence to support the award for future medical expenses.


Headnotes

[1] A jury verdict is presumed to be regular and will not be disturbed on appeal if supported by competent evidence.

[2] A trial court may permit a plaintiff to amend a complaint to conform to the evidence presented at trial, even over the defendant's objection.

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Facts & Procedural History

Plaintiff Sidney Genders was injured by a security guard, Daniel Virgil, at the defendants' boat yard. Plaintiffs sued for negligence and respondeat s…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendants, Louis Nuta and Betty Nuta d/b/a Nuta’s Boat Yard, appeal from a final judgment entered in favor of the plaintiffs, Sidney J. Genders and Lodie Genders, and from an order denying the defendants’ motion for judgment notwithstanding the verdict or for a new trial. We affirm, in part, and reverse and remand, in part.

While at the defendants’ boat yard, Sidney Genders was struck in the head by Daniel Virgil with an iron bar. As a result, Sidney Genders’ skull was fractured. The plaintiffs filed an action against the defendants alleging negligence and respondeat superior liability for Virgil’s misconduct in assaulting and battering Sidney Genders.

The case proceeded to trial. Sidney Genders testified that Virgil, a security guard at the boat yard, had threatened him two months earlier. Norbert Charles testified he was a customer of Nuta’s Boat Yard and hauled his boat there in the spring of 1989. Mr. Nuta told him that if he came on the premises after hours, he had to go through his security guard, Virgil. Sergeant Israel Gonzalez of the City of Miami Police Department testified that on January 25, 1989, he was called to Nuta’s Boat Yard to investigate an assault involving Daniel Virgil. While investigating the assault, Mr. Nuta came to the scene and identified Daniel Virgil as a security guard for Nuta’s Boat Yard. Louis Nuta denied all responsibility for Virgil. Nuta’s bookkeeper denied that Virgil was ever employed at the boat yard as a security guard. At the close of all the evidence, the plaintiffs moved to amend their complaint to conform to the evidence concerning the negligent retention of Daniel Virgil. Over the defendants’ objections, the trial court granted the plaintiffs’ motion to amend.

The jury was instructed on all legally recoverable elements of damage and told to “consider the reasonable value or expense of medical treatment necessarily or reasonably obtained by Mr. Genders in the past or to be obtained in the future. You may also consider any loss of ability to earn money in the future.”

The jury returned a verdict finding that although Daniel Virgil assaulted and battered Sidney Genders, those acts were not within the course and scope of Virgil’s alleged employment with the defendants. The jury also found that the defendants were negligent and awarded the plaintiffs $65,500.00 in damages, including $15,000.00 for future medical expenses. The defendants’ post-trial motions were denied and a final judgment was entered in accordance with the jury’s verdict. The defendants appealed.

The defendants raise two issues on appeal. The first issue is whether there was sufficient evidence to support the jury’s determination that the defendants were liable to the plaintiffs on the theories of negli gent hiring and negligent retention. The second issue is whether there was sufficient evidence to support the jury’s determination that the plaintiffs were entitled to an award of $15,000.00 for future medical expenses.

Although the evidence may be susceptible to different inferences, a jury verdict is presumed to be regular and is not to be disturbed if supported by the evidence. Sweet Paper Sales Corp. v. Feldman, 603 So. 2d 109 (Fla. 3d DCA 1992); Gould v. National Bank of Fla., 421 So. 2d 798, 802 (Fla. 3d DCA 1982); see also E.F. Hutton v. Sussman, 504 So. 2d 1372 (Fla. 3d DCA 1987) (adding that a jury verdict is presumed to conform with the instructions given by the trial court).

If there is any competent evidence to support the verdict, that verdict must be sustained on appeal. Grossman v. Sea Air Towers, Ltd., 513 So. 2d 686 (Fla. 3d DCA 1987), review denied, 520 So. 2d 584 (Fla.1988); Landry v. Hornstein, 462 So. 2d 844 (Fla. 3d DCA1985); Jimenez v. Gulf & Western Mfg. Co., 458 So. 2d 58 (Fla. 3d DCA 1984); Hirsch v. Mount Sinai Medical Ctr., Inc., 458 So. 2d 6 (Fla. 3d DCA 1984); Lee v. Dade County, 342 So. 2d 846 (Fla. 3d DCA1977).

In the instant case, there was sufficient evidence to support the jury’s finding that the defendants were liable for the plaintiff’s injuries.

However, there was no evidence presented as to the amount of future medical expenses or as to the loss of future earning capacity. See DeAlmeida v. Graham, 524 So. 2d 666 (Fla. 4th DCA) (There was evidence in the record as to need for future medical treatment, but no evidence as to amount of future medical expense.), review denied sub nom. Reid v. Graham, 519 So. 2d 988 (Fla.1987). None of the doctors testified that Sidney Genders needed future medical treatment.

For the foregoing reasons, we reverse the part of the jury verdict and final judgment awarding the plaintiffs $15,000 for future medical expenses and remand with directions for the entry of a judgment consistent with this opinion.


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Citator

Cited By

  • Owen v. Morrisey, 793 So. 2d 1018 (Fla. 4th DCA 2001)
    …rnatives, such as an adult congregate living facility. The amount awarded by the jury is within the range testified to by the plaintiffs witnesses. Metrolimo contends that the evidence was insufficient under this court’s decision in Nuta v. Genders, 617 So. 2d 329 (Fla. 3d DCA 1993). That case found that there was insufficient evidence to support the jury’s verdict on the question of, inter alia, future medical expenses. However, in that case, “[n]one of the doctors testified that [plaintiff] needed future me…
  • Metrolimo, Inc. v. Lamm, 666 So. 2d 552 (Fla. 3d DCA 1995)
    …natives, such as an adult congregate living facility. The amount awarded by the jury is within the range testified to by the plaintiff’s witnesses. Metrolimo contends that the evidence was insufficient under this court’s decision in Ñuta v. Genders, 617 So. 2d 329 (Fla. 3d DCA 1993). That case found that there was insufficient evidence to support the jury’s verdict on the question of, inter alia, future medical expenses. However, in that case, “[njone of the doctors testified that [plaintiff] needed future me…
  • Pa. Lumbermens Mut. Ins. Co. v. The Sunrise Club, Inc., 711 So. 2d 593 (Fla. 3d DCA 1998)
    …. In fact, there is ample evidence to justify an adverse verdict as to both. See Dennies Contracting Co. v. Hersh, 702 So. 2d 1381 (Fla. 3d DCA 1997); Wong Ken, 685 So. 2d at 1002; Espino v. Anez, 665 So. 2d 1080 (Fla. 3d DCA 1995); Nuta v. Genders, 617 So. 2d 329 (Fla. 3d DCA 1993); Hirsch v. Mount Sinai Medical Ctr., Inc., 458 So. 2d 6 (Fla. 3d DCA 1984). There is also no merit in the claim that the trial court should have permitted a post-verdict jury interview. See Baptist Hosp. of Miami, Inc. v. Maler,…

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