MACK PAYNE ET AL., APPELLANTS,
v.
SHIRLEY G. ALVAREZ ET AL., APPELLEES
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In a personal injury action arising from a motor vehicle collision, the trial court permitted plaintiff's counsel to present a mathematical per diem formula for calculating pain and suffering damages. The appellate court affirmed, holding that such arguments are permissible within the trial judge's sound discretion and do not constitute an abuse of discretion when evidence supports their use.
The trial court did not abuse its discretion in allowing the per diem argument. Mathematical formulas suggesting per diem amounts for pain and suffering damages are permissible in closing argument when the record contains sufficient evidence to justify their use, and reversal is not warranted absent a clear abuse of discretion.
“the problem of a jury in determining the amount of damages to be awarded for pain and suffering is not one of mathematical calculation but involves an exercise of sound judgment of what is fair and right, and rests within the enlightened conscience of the jury”
Establishes the foundational principle from Braddock that pain and suffering damages require judicial discretion rather than mathematical precision.
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Join FLexlaw to unlock all legal intelligenceAppellants were defendants in a damages action brought by plaintiff for personal injuries sustained in a motor vehicle collision. During closing argum…
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Appellants were defendants in an action for damages resulting from personal injuries sustained by plaintiff arising out of a motor vehicle collision. From an adverse judgment, defendants have appealed.
In his closing argument to the jury, plaintiff’s counsel placed on a blackboard a mathematical formula which he suggested that the jury use in computing the money value of the past, present and future pain and suffering of plaintiff. Defendants objected to the use of such mathematical formula on the ground that it contained figures not adduced in evidence and therefore invaded the province of the jury. The trial court overruled defendants’ objection, and it is this ruling which is assigned as error.
Appellants invite our attention to the Braddock case,1 in which our Supreme Court held that the problem of a jury in determining the amount of damages to be awarded for pain and suffering is not one of mathematical calculation but involves an exercise of sound judgment of what is fair and right, and rests within the enlightened conscience of the jury. Appellants contend that under this ruling any argument which suggests to a jury an amount which should be allowed for pain and suffering on a per diem basis is improper, and an objection thereto should be sustained.
This question was squarely raised before the Third District Court of Appeal in the Ratner case.2 In an exhaustive opinion by Judge Charles Carroll, authorities from other jurisdictions were carefully reviewed and it was found that the weight of authority permits counsel, in his summation to the jury, to use a mathematical formula which suggests amounts on a per diem basis when damages for pain and suffering are involved. In Ratner, the court concluded that whether this type of argument should be permitted rests in the sound judicial discretion of the trial judge, and that the allowance of such argument will not be grounds for reversal in the absence of a showing of an abuse of discretion. A similar conclusion was reached by the Second District Court of Appeal in the Perdue case.3
We adopt both the reasoning and the conclusions reached by the Second and Third District Courts of Appeal on the question here considered. It is our view *661that the record before us contains sufficient evidence to justify use of the per diem argument to which objection was made, and that the trial judge did not abuse his discretion in overruling the objection.
We have considered the remaining points on appeal but find them to be without substantial merit.4
The judgment appealed is affirmed.
STURGIS, C. J. and CARROLL, DONALD K., J., concur.
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Rolande Allred v. Chittenden Pool Supply, Inc., 298 So. 2d 361 (Fla. 1974)…ecially where pain and suffering are involved, based on a mathematical formula of calculable value or on a per diem basis may be helpful to the jury in its final deliberations. Ratner v. Arrington, 111 So. 2d 82 (Fla.App.3rd 1959); Payne v. Alvarez, 156 So. 2d 659 (Fla.App.1st 1963); Perdue v. Watson, 144 So. 2d 840 (Fla.App.2d 1962); Magid v. Mozo, 135 So. 2d 772 (Fla.App.1st 1961); Braddock v. Seaboard Air Line Railroad Co., 80 So. 2d 662 (Fla.1955), also reported at 96 So. 2d 127 (Fla.1957). Such argument…
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Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034 (Fla. 2d DCA 2013)…at Mechanik Nuccio was entitled to an award of attorney’s fees and taxable costs at all, its rights were dependent on and derivative of the rights of its client, RC Highlands. See Wolf v. Horton, 322 So. 2d 71, 72 (Fla. 3d DCA 1975); Hope v. Lipkin, 156 So. 2d 659, 659 (Fla. 3d DCA 1963). For this reason, Mechanik Nuccio “stood in the shoes” of RC Highlands with regard to the set-off of its claim for fees and costs by the Tubbses’ countervailing claim against RC Highlands. See Mass. Cas. Ins. Co. v. Forman, 6…
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The Valparaiso Bank & Tr. Co. C. T. A. of the Est. of Coleman L. Kelly v. Sims, 343 So. 2d 967 (Fla. 1st DCA 1977)…debt or as a penalty. See Keena v. Keena, 245 So. 2d 665, 667 (Fla.1st DCA 1971); Chaachou v. Chaachou, 135 So. 2d 206, 223 (Fla.1961); Smith v. Smith, 90 Fla. 824, 107 So. 257 (1925); Kolb v. Kolb, 103 Fla. 193, 137 So. 237 (1931); Hope v. Lipkin, 156 So. 2d 659 (Fla.3d DCA 1963). The 1968 contract between Mrs. Kelly and her lawyer might properly be considered as limiting the amount of his compensation above $1,500 to the amount recoverable by Mrs. Kelly in fee money. On this record it appears such contract…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Braddock v. Seaboard AIR Line R.R. Co., 80 So. 2d 662 (Fla. 1955)
- Sirmons v. Pittman, 138 So. 2d 765 (Fla. 1st DCA 1962)
- Ratner v. Arrington, 111 So. 2d 82 (Fla. 3d DCA 1959)
- Mrs. William O. Perdue and William O. Perdue, Jr. v. Watson, 144 So. 2d 840 (Fla. 2d DCA 1962)