CARMELO SAVOCA AND MARIE SAVOCA, APPELLANTS,
v.
SHERRY FRONTENAC HOTEL OPERATING COMPANY, INC., D/B/A SHERRY FRONTENAC HOTEL, AND CONSOLIDATED MUTUAL INSURANCE COMPANY, APPELLEES
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The court held that the trial judge's clarification of jury instructions regarding damage reduction resolved any confusion, and the plaintiffs' counsel's acquiescence waived any objection to the procedure. The court also held that the plaintiffs waived the issue of inconsistent verdicts by failing to object and refusing to allow the jury to correct it.
[1] A trial court's instruction on comparative negligence requiring the jury to reduce total damages by the plaintiff's percentage of negligence is clarified when the judge s…
[2] Counsel's affirmative response to a judge's explanation of jury instructions, without objection, waives the right to later claim error based on that explanation.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued for injuries sustained by Marie Savoca when she slipped and fell on the defendant's premises. The jury initially found Marie 80% negli…
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PER CURIAM.
Plaintiffs, Carmelo Savoca and Marie Sa-voca, appeal a final judgment awarding Marie $13,000 and Carmelo zero dollars for damages for injuries sustained by Marie on the premises of the defendant when she slipped and fell injuring her hip.
Plaintiffs basically argue that the trial judge erred in giving conflicting and contradictory instructions to the jury as to whether the jurors or the judge were to reduce the total amount of compensatory damages in accordance with the jury’s initial determination as to the percentage of negligence attributed to the plaintiffs and the defendant. Plaintiffs claim that the $13,000 final judgment was the result of a double reduction of the damages.
The record reflects that initially the trial judge instructed the jury on comparative negligence and that the jurors should reduce the total amount they find Marie Sa-voca is entitled to by the percentage of her negligence. Five minutes after the jury retired to deliberate, the trial judge called the jurors back to instruct them on the sympathy charge which he had omitted. After cautioning them not to permit bias to enter into their consideration of the verdict, the judge then explained the special interrogatory form of the verdict which the clerk gave them, and further instructed them not to be concerned about the reduction of the amount of damages. Counsel for plaintiffs and defendant made no comment or objection when asked by the trial judge if there was anything further. The jury deliberated for about an hour and then returned a verdict finding plaintiff Marie Savoca 80% negligent and defendant Sherry Frontenac Hotel 20% negligent. However, the jury had not filled in the amount of damages and the judge asked them to retire and complete the form of the verdict. At this juncture, the jurors were confused about the reduction and submitted in writing the question of who reduces the damages, the jury or the judge. Thereupon, the trial judge called the jurors into the courtroom and explained to them that they should determine the total amount of damages and the court would then reduce it. The jury retired and two minutes later returned with a verdict awarding Marie $65,-000. However, the amount of damages for her husband, Carmelo, was left blank. The judge noted the blank and informed the foreman that if the jury’s answer was none, then to so indicate by writing “none” or “zero” in that blank space. The foreman then wrote in the word “none”. After the verdict was published, both attorneys, upon being asked; declined to poll the jurors. Thereafter, the trial judge (in accordance with the percentage of negligence attributed to Marie) reduced the $65,000 to $13,-000 and entered judgment in that amount.
It is clear that any confusion on the part of the jurors as to the issue of reduction of damages was resolved by the trial judge’s explanation when he answered the question posed to him on this matter. Furthermore, when asked by the judge if his explanation to the jury on reduction was satisfactory, plaintiffs’ counsel answered in the affirmative. Plaintiffs’ counsel having failed to make any objection and, in fact, having acquiesced and the evidence being sufficient to sustain an award of $65,000 before reduction, we find no merit in this contention of plaintiffs. See Holmes v. School Board of Orange County, 301 So. 2d 145 (Fla.4th DCA 1974); Florida Antilles Properties, N. V. v. Rose & Rose, Inc., 324 So. 2d 129 (Fla.3d DCA 1975).
Plaintiffs also urge as reversible error the fact that the verdict for zero dollars for Carmelo and $65,000 for Marie is inconsistent as Carmelo had a derivative claim for medical expenses while Marie’s claim was for pain and suffering.
The record demonstrates that this matter of inconsistent verdicts was raised by defendant’s counsel immediately after the verdict was published. Plaintiffs’ counsel refused to concede that the verdicts consti tuted error and after further discussion, the attorneys could not agree on a resolution of this problem and the jury was discharged.
We conclude this point also lacks merit. First, no objection to the verdicts was made by plaintiffs’ counsel who refused to concede error. In addition, the inconsistency could have been corrected before the jury was discharged if, as counsel for defendant suggested, the cause was resubmitted to the jury. However, plaintiffs’ counsel refused to agree to this suggestion. Thus, any error as to the receipt of the inconsistent verdicts has not been preserved for purposes of this appeal. See Lindquist v. Covert, 279 So. 2d 44 (Fla.4th DCA 1973); Shank v. Fassoulas, 304 So. 2d 469, 471 (Fla.3d DCA 1974).
Affirmed.
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Phillips v. Ostrer, 481 So. 2d 1241 (Fla. 3d DCA 1985)…igo, 66 So. 2d 684 (Fla.1953); N. American Catamaran Racing Assoc. v. McCollister, 480 So. 2d 669 (Fla. 5th DCA 1985); Ashby Div. of Consol. Aluminum Corp. v. Dobkin, 458 So. 2d 335 (Fla. 3d DCA 1984); Savoca v. Sherry Frontenac Hotel Operating Co., 346 So. 2d 1207 (Fla. 3d DCA 1977).…
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Cowart v. Kendall United Methodist Church & Atl. Mut. Ins. Co., 476 So. 2d 289 (Fla. 3d DCA 1985)…nied by a money award in the nonderivative one, is not required to preserve the claim that the award of no damages is inadequate or contrary to the weight of the evidence. The decision of this court in Savoca v. Sherry Frontenac Hotel Operating Co., 346 So. 2d 1207 (Fla. 3d DCA 1977), upon which the appellees and the trial court have relied for the contrary proposition, does not hold otherwise. Savoca involved that aspect of the general rule requiring the timely assertion below of correctable error, Diaz v. Ro…
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The Keyes Co. v. Sens, 382 So. 2d 1273 (Fla. 3d DCA 1980)….Higbee v. Dorigo, 66 So. 2d 684, 685 (Fla. 1953); Isenberg v. Ortona Park Recreational Center, Inc., 160 So. 2d 132 (Fla. 1st DCA 1964); Lindquist v. Covert, 279 So. 2d 44 (Fla. 4th DCA 1972); Savoca v. Sherry Frontenac Hotel Operating Co., Inc., 346 So. 2d 1207 (Fla. 3d DCA 1977); Wiggs and Maaie Construction v. Harris, 348 So. 2d 914 (Fla. 1st DCA 1977).…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lindquist v. Emy Lou Covert and Allyn Richard Myers, 279 So. 2d 44 (Fla. 4th DCA 1973)
- Holmes v. The Sch. Bd. OF Orange Cnty., 301 So. 2d 145 (Fla. 4th DCA 1974)
- Shank v. Konstantinos Ioannis Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974)
- Fla. Antilles Props. v. Rose & Rose, Inc., 324 So. 2d 129 (Fla. 3d DCA 1975)