KMART CORPORATION, APPELLANT,
v.
SUSANA BRACHO, APPELLEE
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The court held that a jury's allocation of damages, even if arguably mistaken, is harmless error if the total amount is reasonable and the defendant failed to preserve an objection.
[1] A defendant waives an objection to a jury's arguable misallocation of damages if the defendant fails to request re-submission to the jury to correct the alleged mistake.
[2] An arguable misallocation of damages by a jury may be considered harmless error if the total verdict amount is reasonable and unassailable.
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Join FLexlaw to unlock all legal intelligenceA jury awarded a plaintiff $53,168.00 for past and future medical expenses but nothing for past and future pain and suffering. The trial court granted…
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SCHWARTZ, Chief Judge.
Ms. Bracho was injured in a fall at a Kmart store and recovered a jury verdict which found Kmart 100% liable for the accident and assessed $53,168.00 in damages in her favor, which were divided as follows:
Past medical expenses: $15,168.00
Future medical expenses: $38,000.00
Past pain and suffering: $0
Future pain and suffering: $01 The store now appeals an order granting a new trial as to items of damages alone.2 Its primary contention is that the new trial should include the issue of liability as well. We reject this position,3 upon the conclusion that there should be no new trial at all.4
It is clear that the gross verdict of $53,168.00 is an eminently fair one which is fully supported by the evidence. If at all, the jury was arguably mistaken5 only by assigning the awards to past and (in an excessive amount) future6 medical expenses, while giving nothing at all for past and future pain and suffering, though the evidence required at least some amount for these elements. In other words, there was too much for the medicals and too little for the intangibles. But, as in Delva v. Value Rentr-A-Car, 693 So. 2d 574 (Fla. 3d DCA 1997), the defendant did not preserve an objection to the claimed error by requesting a re-submission to the jury to correct the alleged mistake. Moreover, again like Delva, the jury’s arguable misallocation of the amounts returned may be regarded as no more than harmless error in light of the reasonableness and unassailability of the bottom line amount. See Allstate Ins. Co. v. Manasse, 707 So. 2d 1110 (Fla.1998); Sutton v. Grossteiner, — So. 2d -, 2000 WL 1580358 (Fla. 2d DCA Case no. 2D98-1059, opinion filed, October 25, 2000)[25 FLW D2549]. On the authority of Delva, therefore, we deem it appropriate to reverse the order granting a new trial7 and remand for entry of judgment in favor of the plaintiff for $53,168.00, the total amount of the jury verdict, with interest from October 21, 1999, the date of its return.
Reversed and remanded with directions.
. While the record does not contain the verdict form itself, the transcript reflects the following:
THE CLERK: We the jury return the following verdict: Was there negligence on the part of K Mart Corporation the legal cause of damage to plaintiff, Susana Bra-cho? Yes.
Question two: Was there negligence on the part of the plaintiff, Susan Bracho, which was the legal cause of damages? Answer: No. Question four: What is the amount of damages sustained for medical expenses in the past? 15,168.
What is the amount of future damages for medical expenses to be sustained in the future years? 38,000.
What is the amount of damages for pain and suffering in the past? Zero. Future, $53,168. Foreperson, Mr. Pardillo.
The parties agree that the $53,168.00 at the conclusion of the verdict represents the total of the past and future medical expenses and that "zero” was in fact returned for both past and future pain and suffering.
.ORDER GRANTING PLAINTIFF’S MOTION FOR A NEW TRIAL
This cause came on to be heard on November 17, 1999 on the (1) Defendant’s Motion for new trial or alternatively motion for remittitur, and (2) Plaintiffs motion for additur or in the alternative motion for new trial on non-economic damages. The Court having reviewed the pleadings, heard argument of counsel and being otherwise advised in the premises, it is hereby ordered and adjudged as follows:
1. Defendant’s motion for remittitur and Plaintiff's motion for additur are both denied.
2. The jury found the Defendant 100% liable. Since the issue of liability is severable from the damages issues, the court denies the Defendant’s motion for new trial on all issues set fourth in said motion, including liability. See Delva v. Value Rent-A-Car, 693 So. 2d 574 (Fla. 3d DCA 1997).
3. A different result is required on the issue of damages. In the present case, the jury awarded Plaintiff both past and future medical expenses, but awarded Plaintiff zero damages for past and future pain and suffering. The Court agrees with the Plaintiff that such a jury verdict is inadequate as a matter of law. See Dolphin Cruise Line, Inc. v. Stassinopoulos, 731 So. 2d 708 (Fla. 3d DCA 1999); Avakian v. Burger King Corp., 719 So. 2d 342 (Fla. 4th DCA 1998).
4. The Court rejects the Plaintiff's argument, however, that any new trial should be limited to the issue of intangible damages, finding that any such would be too limited in scope. Without waiving any appellate rights the parties have stipulated that the award of past medical expenses may stand. Therefore there is no need to retry that issue. Accordingly, the new trial will be limited to the issues of Plaintiff’s future medical expenses, and past and future pain and suffering.
. See Delva v. Value Rent-A-Car, 693 So. 2d 574 (Fla. 3d DCA 1997).
. While the plaintiff filed no separate or cross-appeal seeking this relief, she intimated the position in her answer brief and specifically advanced it at oral argument. Accordingly, we have considered it on the authority of such cases as City of Hialeah v. Martinez, 402 So. 2d 602, 603 n. 4 (Fla. 3d DCA 1981), pet. for review dismissed, 411 So. 2d 380 (Fla.1981).
. But see Allstate Ins. Co. v. Manasse, 707 So. 2d 1110 (Fla.1998).
. While the future award was $38,000.00, the parties agree that the evidence supported no more than $26,650.00.
. See supra note 4.
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Garrett v. Miami Transfer Co., Inc., 964 So. 2d 286 (Fla. 4th DCA 2007)…was reasonable. The appellees support this view by citing two cases in which the court looked to the total verdict in deciding whether additur was appropriate. See Delva v. Value Rent-A-Car, 693 So. 2d 574 (Fla. 3d DCA 1997), KMart Corp. v. Brocho, 776 So. 2d 342, 343 (Fla. 3d DCA 2001). Both are distinguishable. In both KMart and Del-va, the jury awarded future medical expenses in excess of the maximum amount the evidence would support. The complaining party failed to request resubmission of the verdict for…
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Trowell v. J.C. Penney Co., Inc., 813 So. 2d 1042 (Fla. 4th DCA 2002)…o grant motion for new trial or additur where the jury returned a verdict in the exact amount of the plaintiffs medical expenses and assumedly nothing for pain and suffering), review denied, 780 So. 2d 912 (Fla.2001); see also Kmart Corp. v. Bracho, 776 So. 2d 342, 343 (Fla. 3d DCA 2001)(holding that new trial was not required where the jury awarded past and future medical expenses and nothing for pain and suffering as “the gross verdict ... is an eminently fair one”). Next, Trowell suggests that he is entit…
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Carnival Corp. v. Amato, 840 So. 2d 1088 (Fla. 3d DCA 2003)…s” leading inevitably to the conclusion that the jury never recovered its bearings. Cardinal, 529 So. 2d at 340, n. 2. The present case does not reach the impenetrable thicket of Cardinal; rather it falls into the category of Kmart Corp. v. Bracho, 776 So. 2d 342 (Fla. 3d DCA 2001), where the reasonableness and unassailability of the bottom line amount rendered harmless any arguable miscalculation of the component verdict amounts returned. See also C.G. Chase Const. Co. v. Colon, 725 So. 2d 1144, 1145-46 (Fl…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allstate Ins. Co. v. Myrda Manasse, 707 So. 2d 1110 (Fla. 1998)
- Dolphin Cruise Line, Inc. v. Stylianos Stassinopoulos, 731 So. 2d 708 (Fla. 3d DCA 1999)
- The City OF Hialeah v. Martinez, 402 So. 2d 602 (Fla. 3d DCA 1981)
- Delva v. Value Rent-A-Car, 693 So. 2d 574 (Fla. 3d DCA 1997)
- Takouhie Avakian v. Burger King Corp., 719 So. 2d 342 (Fla. 4th DCA 1998)