ATHENA F. GRAINGER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SAM GUS FELOS, APPELLANT,
v.
HOWARD B. WALD, JR., APPELLEE

Fla. 1st DCA | 2008-04-10
No. 1D07-2772
BROWNING, C.J., and LEWIS, J., concur.
982 So. 2d 42 Florida District Court of Appeal, First District (2008) Negative Treatment
Cited by 4 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

Athena Grainger, as representative of Sam Gus Felos's estate, appealed a $1 million damages award in an automobile negligence case. The trial court granted a directed verdict on the permanency of injuries, which the appellate court held was reversible error because permanency is a jury question that must be submitted to the jury when there is conflicting or ambivalent testimony.


Holding

The trial court reversibly erred by granting a directed verdict on permanency. Permanency is a jury question that must be submitted to the jury when there is conflicting testimony, and the jury is free to weigh and reject expert testimony, including uncontradicted testimony. The directed verdict improperly removed the permanency issue from jury consideration.


Headnotes

[1] Permanency of injuries is a question for the jury.

[2] A jury is free to weigh the credibility of expert witnesses and reject their testimony, even if uncontradicted.

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

Key Quotes

“Permanency is a jury question.”

Establishes the fundamental legal principle that permanency of injuries must be decided by the jury, not the trial court.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Howard Wald was injured in an automobile collision where the defendant admitted fault. Wald sustained injuries to his neck, back, and right arm, foot,…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HAWKES, J.

HAWKES, J.

This is an appeal from a final judgment awarding over $1 million in damages for injuries Plaintiff/Appellee Howard Wald sustained in an automobile accident for which the defendant admitted fault. Appellant asserts the award resulted from the trial court’s error in granting a directed verdict as to permanency of the injuries, effectively removing that question from the jury. We agree and reverse.

Wald alleged he suffered injuries to his neck, back, and right arm, foot, and thigh in the collision. He sought damages only for his neck and back injuries. He did not seek damages for his thigh condition because it caused no “ongoing daily chronic pain.” Since the defendant admitted fault, the only issues for the jury were causation, permanency of the injuries, and damages.

At trial, one doctor testified Wald had permanent neck, low back and right thigh injuries causally connected to the collision. Another doctor opined the neck and low back injuries were not permanent, and neither was causally connected to the collision. However, the second doctor also opined Wald had permanent right thigh numbness and, giving Wald “the benefit of the doubt,” the condition was related to the collision. Based on this testimony Wald moved for directed verdict on permanency, arguing there was no evidence that he did not suffer a permanent injury from the collision. Ultimately, over objection, the trial court granted the motion for directed verdict on permanency, but only as to the right thigh condition. The trial court instructed defense counsel that he was free to argue to the jury that none of the other injuries were permanent. Additionally, the trial court instructed the jury it was free to weigh, accept, or reject the opinions of any expert witness. However, there was no reference to permanence in the verdict form or in the jury instructions. Consequently, there was no avenue through which the jury could reject the permanency of any of the injuries. By directing a verdict as to permanency the trial court reversibly erred.

Permanency is a jury question. See Frank v. Wyatt, 869 So. 2d 763, 765 (Fla. 1st DCA 2004). A jury is free to weigh the credibility of expert witnesses as it does any other witness, and reject even uncontradicted testimony. See id. (citing Republic Servs. of Fla. v. Poucher, 851 So. 2d 866, 871 (Fla. 1st DCA 2003); Easkold v. Rhodes, 614 So. 2d 495 (Fla.1993)). Likewise, a jury is entitled to weigh the credibility of a medical expert and a lay witness, reject the expert testimony and base its verdict solely on conflicting lay testimony, or reject the plaintiffs claim entirely. See Republic Servs. of Fla., 851 So. 2d at 871 (citing Weygant v. Ft. Myers Lincoln Mercury, Inc., 640 So. 2d 1092 (Fla.1994)).

Here, there was conflicting testimony as to the permanency of Plaintiffs neck and back injuries, and the testimony as to the permanency of Plaintiffs thigh injury was ambivalent. However, the jury was free to reject any testimony regarding permanency, including uneontradicted testimony. By granting a directed verdict as to the permanency of Plaintiffs thigh injury, a condition for which Plaintiff did not seek damages because it caused no “ongoing daily chronic pain,” the trial court took from the jury’s consideration the issue of the permanency of Plaintiffs neck and back injuries, the only conditions for which Plaintiff sought damages.1

Because the issue of permanency is a jury question, the trial court erred as a matter of law by directing a verdict on that issue. The final judgment is REVERSED and the case REMANDED for a new trial.

BROWNING, C.J., and LEWIS, J., concur. . Significantly, based on a plain reading of the statute, it appears the jury would be precluded from awarding damages based on the permanency of the thigh injury, because that injury did not cause "pain, suffering, mental anguish or inconvenience.” See § 627.737(2), Fla. Stat.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Wald v. Athena F. Grainger, 64 So. 3d 1201 (Fla. 2011)
    …QUINCE, J. Howard B. Wald, Jr., seeks review of the decision of the First District Court of Appeal in Grainger v. Wald, 982 So. 2d 42 (Fla. 1st DCA 2008), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal and this Court on two questions of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed…
    1 / 2
  • Athena F. Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010)
    …or more than one million dollars, and the estate appealed the judgment to this court, which reversed and remanded for a new trial. The supreme court has since granted re [*1159] view of our decision in the personal injury case. See Grainger v. Wald, 982 So. 2d 42 (Fla. 1st DCA 2008), rev. granted, 11 So. 3d 943 (Fla.2009). Whether the estate will ultimately be indebted to Mr. Wald is now for our supreme court to say, and remains to be finally determined. The order on appeal in the present case finally deter…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw