WINN-DIXIE STORES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
RICHARD J. NAFE, INDIVIDUALLY AND AS FATHER AND NEXT FRIEND OF FRANCES MARTHA NAFE, A MINOR, APPELLEES
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Winn-Dixie Stores appeals a slip-and-fall judgment for a minor plaintiff who suffered trauma that aggravated a latent blood disease. The court affirmed the judgment, holding that the jury instruction allowing full damages when apportionment of injury cannot be determined was proper.
The jury instruction was proper. The jury was correctly instructed that it could apportion damages if it could determine what portion of the plaintiff's condition resulted from the aggravation, but if apportionment could not be determined or the condition would not have existed apart from the injury, the jury could assess all damages against the tort feasor.
“If you find that there was such an aggravation, you should determine, if you can, what portion of Frances Nafe's condition resulted from the aggravation, and make allowance in your verdict only for the aggravation. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, you should consider and make allowance in your verdict for the entire condition.”
The jury instruction at issue, establishing the framework for apportioning or awarding full damages for aggravation of pre-existing conditions.
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Join FLexlaw to unlock all legal intelligenceFrances Martha Nafe, a minor, slipped and fell on defendant Winn-Dixie's premises. The trauma from the fall incited or aggravated a serious blood dise…
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Appellant, defendant in the trial court, seeks review of a final judgment subsequent to an adverse jury verdict in a slip and fall case. The only point preserved for review is the correctness of the following jury charge, taken from the standard jury charges:1
* * * * * *
“You may take into consideration any aggravation of an existing disease, or physical defect, resulting from such injury.
“If you find that there was such an aggravation, you should determine, if you can, what portion of Frances Nafe’s condition resulted from the aggravation, and make allowance in your verdict only for the aggravation.
“However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, you should consider and make allowance in your verdict for the entire condition.”
* * * * * *
It is apparent from the record on appeal, viewed in a light most favorable to the verdict, that the charge was proper. There was evidence which indicated that the trauma experienced by the minor plaintiff, as a result of the slip and fall in the defendant’s premises, incited or aggravated a serious blood disease which had not theretofore been apparent in her. It was within the province of the jury, pursuant to the charge, to apportion the damage if it could but if not, as the charge indicated, it was justified in assessing all the damage against the tort feasor, in accordance with C. F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694; Wise v. Carter, Fla.App.1960, 119 So.2d 40; Byrd v. Felder, Fla.App.1967, 197 So.2d 554; Hollie v. Radcliffe, Fla.App.1967, 200 So.2d 616.
Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.
Affirmed.
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Reyka v. Halifax Hosp. Dist., 657 So. 2d 967 (Fla. 5th DCA 1995)…onment of damages. See, e.g., Hawkins v. Williams, 557 So. 2d 618 (Fla. 4th DCA 1990), rev. dismissed, 570 So. 2d 1307 (Fla.1990); Mack v. Garcia, 433 So. 2d 17 (Fla. 4th DCA), rev. denied, 440 So. 2d 352 (Fla.1983); Winn-Dixie Stores, Inc. v. Nafe, 222 So. 2d 765 (Fla. 3d DCA 1969). Further, this ease is a wrongful death ease. Asking a jury to apportion death damages under the requested instruction would be confusing. A victim of a negligent act may be more severely injured than otherwise, due to a prior or…
Authorities Cited
- C. F. Hamblen, Inc. v. Owens, 127 Fla. 91 (Fla. 1937)
- Wise v. Carter, 119 So. 2d 40 (Fla. 1st DCA 1960)
- Hollie v. Radcliffe, 200 So. 2d 616 (Fla. 1st DCA 1967)
- Collier v. State, 197 So. 2d 554 (Fla. 2d DCA 1967)