PAULETTE M. DOUBEK AND ANTHONY DOUBEK, HER HUSBAND, APPELLANTS,
v.
WAL-MART STORES, INC., A FOREIGN CORPORATION, APPELLEE
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Paulette Doubek sued Wal-Mart after a stockman dropped a television on her head while descending a ladder. The jury found Wal-Mart negligent but apportioned 95% negligence to Mrs. Doubek despite no evidence of her contributory conduct. The appellate court reversed, holding that a directed verdict should have been entered in plaintiff's favor and that a proper intervening cause instruction regarding subsequent medical negligence should have been given.
The trial court erred in failing to direct a verdict for the plaintiff on the comparative negligence defense because there was no evidence that Mrs. Doubek contributed to her injuries. The trial court also erred in refusing to give an intervening cause instruction, which was required because evidence of subsequent medical negligence was presented to the jury, and the original tortfeasor remains liable for aggravation of injuries caused by such treatment.
[1] A defendant is not entitled to an apportionment of negligence when there is no evidence that the plaintiff caused or contributed to the accident.
[2] A trial court errs in failing to direct a verdict in a plaintiff's favor on a defendant's affirmative defense of comparative negligence when no evidence supports the defe…
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“We find from the record no evidence that Mrs. Doubek did anything to cause or contribute to the Wal-Mart accident. We conclude, therefore, that the trial court erred in failing to direct a verdict in plaintiffs favor on Wal-Mart's affirmative defense of comparative negligence.”
Establishes that the trial court should have entered judgment for plaintiff because there was no evidentiary basis for apportioning negligence to her.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA Wal-Mart stockman climbed a ladder to retrieve a 13-inch television from an overhead riser. While descending the ladder, the stockman slipped and dr…
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TAYLOR, J.
Appellant Paulette Doubek sued appel-lee, Wal-Mart Stores, Inc. (‘Wal-Mart”), for injuries she sustained in one of appel-lee’s stores. A Wal-Mart stockman, who had climbed upon a ladder to retrieve a 13 inch television stacked on an overhead riser, slipped while descending the ladder and dropped the television on Mrs. Dou-bek’s head. Plaintiffs husband, Anthony Doubek, sought damages for loss of consortium.
A jury returned a verdict finding that Wal-Mart was negligent, but apportioned 5% negligence to Wal-Mart and 95% negligence to Mrs. Doubek. We find from the record no evidence that Mrs. Doubek did anything to cause or contribute to the Wal-Mart accident. We conclude, therefore, that the trial court erred in failing to direct a verdict in plaintiffs favor on Wal-Mart’s affirmative defense of comparative negligence.
We also find error in the trial court’s refusal to give a requested intervening cause instruction, i.e., that the original tortfeasor is liable for any aggravation of the plaintiffs injuries caused by subsequent medical treatment for those injuries. At trial, Wal-Mart opposed the instruction, arguing that because the plaintiff, in violation of an in limine order, had improperly placed evidence of subsequent medical negligence before the jury, she was not entitled to the instruction.
It is well-settled in Florida that when evidence is presented that the plaintiffs injuries are the result of inappropriate medical treatment, the jury must be instructed that the original tortfeasor is liable for any aggravation of the plaintiffs injuries caused by subsequent medical treatment for those injuries. See Stuart v. Hertz Corp., 351 So. 2d 703, 707 (Fla.1977); Emory v. Fla. Freedom Neivspapers, 687 So. 2d 846, 847-48 (Fla. 4th DCA 1997); Dungan v. Ford, 632 So. 2d 159, 160 (Fla. 1st DCA 1994). Even if, as Wal-Mart argued, plaintiffs counsel “opened the door” to such evidence, the evidence was before the jury, and the jury should have been properly instructed on the law that applied to that evidence.
Accordingly, we reverse on both points and remand for a new trial on liability and damages. We need not decide the remaining points on appeal in light of our reversal.
REVERSED and REMANDED for proceedings consistent with this opinion.
FARMER, J., and MAY, MELANIE G., Associate Judge, concur.
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Earleen Tucker v. Korpita, 77 So. 3d 716 (Fla. 4th DCA 2011)…t for those injuries. Even if ... plaintiff's counsel "opened the door” to such evidence, the evidence was before the jury, and the jury should have been properly instructed on the law that applied to that evidence. Doubek v. Wal-Mart Stores, Inc., 804 So. 2d 347, 349 (Fla. 4th DCA 2001) (citations omitted). Therefore, regardless whether appellant "invited” the testimony or not, the instruction would still be mandated.…
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Pedro v. Baber, 83 So. 3d 912 (Fla. 2d DCA 2012)…ony also suggests that the surgery worsened Ms. Baber’s pain. Even if a party “opens the door” to evidence of malpractice, the trial court should instruct the jury on the law that applies to that evidence. Cf. Doubek v. [*917] Wal-Mart Stores, Inc., 804 So. 2d 347, 348-49 (Fla. 4th DCA 2001) (holding trial court should have given Stuart instruction even though plaintiff violated motion-in-limine order and opened the door to evidence of subsequent medical provider negligence).4 We find no abuse of discretion…
Authorities Cited
- Frank M. Stuart, M.D., P.A. v. The HERTZ Corp., 351 So. 2d 703 (Fla. 1977)
- Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994)
- Errol Jerome Emory v. Florida Freedom Newspapers, 687 So. 2d 846 (Fla. 4th DCA 1997)