Garrett v. Miami Transfer Co., Inc.

964 So. 2d 286, 2007 WL 2780988
CourtDistrict Court of Appeal of Florida
DecidedSeptember 26, 2007
Docket4D06-82
StatusPublished
Cited by5 cases

This text of 964 So. 2d 286 (Garrett v. Miami Transfer Co., Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. Miami Transfer Co., Inc., 964 So. 2d 286, 2007 WL 2780988 (Fla. Ct. App. 2007).

Opinion

964 So.2d 286 (2007)

Michael GARRETT, Appellant,
v.
MIAMI TRANSFER COMPANY, INC., a Florida corporation, and Florida Power & Light Company, a Florida corporation, Appellees.

No. 4D06-82.

District Court of Appeal of Florida, Fourth District.

September 26, 2007.

*287 Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and F. Kendall Slinkman of Slinkman & Slinkman, P.A., Jupiter, for appellant.

Rosemary B. Wilder and Philip Glatzer of Marlow, Connell, Valerius, Abrams, Adler, Newman, Lewis & Blevins, Coral Gables, for appellees.

ON MOTION FOR REHEARING

WARNER, J.

We grant the appellant's motion for rehearing, withdraw our previously issued opinion and substitute the following in its place, which changes the directions on remand.

The issue presented in this case is whether a court errs in refusing to grant an additur when the jury makes an award of future medical expenses but fails to award future pain and suffering damages, and the evidence is not only undisputed that the accident caused the plaintiff's injuries but also that the plaintiff will continue to suffer as a result of the injuries. We hold that the court erred in failing to grant an additur, because the award was inadequate as a matter of law. We therefore reverse for a new trial on damages.

The plaintiff, Michael Garrett, who was twenty-three years old at the time of his accident, worked for Bar Tech, a labor force hired by Florida Power and Light ("FPL") to decommission a transformer on FPL's property. Decommissioning is the process of scrapping or junking a transformer. When a transformer blows out, it must either be rebuilt or scrapped. Transformers generally are scrapped in the field because of their massive size— some units weigh nearly 800,000 lbs.

On the day of the accident, Garrett's supervisor instructed him to climb to the top of the transformer to assist with removing the radiators from the unit. When he did so, the transformer tipped slightly, causing Garrett to fall about thirteen feet to the ground, injuring his hip, arm and wrist. Immediately after his fall, the plaintiff was taken to the hospital where he was treated by Dr. Jay Dennis, an orthopedic surgeon. As a result of the plaintiff's fall, the plaintiff sustained a complex left distal radius fracture in his wrist, a closed left distal humerus fracture in his arm, and a left hip injury. The wrist fracture required stabilization with an external fixation device, requiring pins in the bone to attach the external device. This device remained in place for eight weeks. The arm fracture required a cast and healed in about six weeks.

The evidence regarding the extent of Garrett's injuries and disabilities as a result of the accident was undisputed. Both plaintiff and defense experts essentially agreed on this issue.

Garrett developed carpal tunnel syndrome after his initial wrist injury and required two different surgeries to relieve numbness. In 2002 he was released for light duty work, and he went back to driving heavy equipment. At trial his treating physician, Dr. Dennis, rated him with a 16% whole body functional impairment for the wrist injury. The doctor did not expect Garrett to get any better. Dr. Dennis testified that Garrett may need additional surgery in the future should he continue to experience problems with his wrist. And if he continued in his manual labor employment, the probability of additional surgery was greater. Garrett may also develop degenerative arthritis in his wrist.

Garrett saw Dr. Girard, another orthopedic doctor, with respect to the hip injury and was treated for tendonitis and bursitis *288 during five visits in 2001 and then again for a flare-up in 2004. Dr. Girard testified that the condition would continue for the rest of Garrett's life. Dr. Girard opined that Garret had a 2% functional impairment rating for the soft tissue hip injury. As part of his treatment, he received physical therapy, and the physical therapist testified that she expected the plaintiff to walk with a limp indefinitely. Dr. Girard prescribed anti-inflammatory medication. He testified that Garrett may also need cortisone injections to treat inflammation in his hip.

None of the defense testimony disputed Garrett's injuries and disabilities. With respect to the wrist injury, defense expert Dr. Thebaut testified that Garrett sustained a 24% whole body impairment, a more significant impairment than found by Garrett's own treating physician. Dr. Thebaut opined that Garrett would always have an abnormal sensation of numbness and tingling in his wrist. He did not believe that Garrett was malingering. He also agreed that future surgery was a fifty/fifty probability.

Garrett testified that he continued to experience pain and numbness in his wrist and occasionally in his hip, but it hurt only when he was working. His wrist hurts more during winter when his wrist gets cold. When it is cold, his nerves are easily irritated, and he feels like he is receiving an electronic shock when he tries to squeeze or grab things. And if someone bumps his arm in a certain area, it can cause a shock to go down his arm. Although he continues to work, he had problems with his hip and wrist on his last equipment operating job. He has been unable to engage in some of the more energetic recreational activities that he enjoyed prior to the accident, including bull riding, hog hunting, boxing, fishing, and weightlifting.

An occupational expert testified to both Garrett's future loss of earning capacity, which he calculated at $2,000,000, and Garrett's future medical expenses, which he put in a range of $38,000 to $131,250, based upon the cost of treatment for both the wrist and his hip. The higher amount included the cost of future surgery for the wrist and injections for the hip.

The jury found the defendants, except Bar Tech, negligent and Garrett comparatively negligent. The jury awarded $50,000 for past medical expenses, $130,000 for future medical expenses, $144,000 for past lost earning ability, and $26,000 for past pain and suffering, for a total of $350,000. However, it awarded nothing for future lost earning ability and nothing for future pain and suffering. Garrett immediately argued to the court that the damages awards as to future lost earning capacity and future pain and suffering were inadequate as a matter of law, and requested that the jury be instructed to re-determine at least those items. The court denied the request and also denied Garrett's post-trial motion for additur and/or motion for a new trial on damages. In denying the motion for additur, the court stated that the amount awarded was supported by the evidence presented and that the jury's arguable misallocation of the amount returned is no more than harmless error in light of the reasonableness of the bottom line amount. This appeal follows.

A trial court enjoys broad discretion in ruling on a motion for new trial:

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the *289 processes by which the ultimate decision of the triers of fact, the jurors, is reached.

Cloud v. Fallis, 110 So.2d 669, 673 (Fla. 1959) (citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 286, 2007 WL 2780988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-miami-transfer-co-inc-fladistctapp-2007.