REPUBLIC SERVICES OF FLORIDA v. Poucher

851 So. 2d 866, 2003 WL 21910630
CourtDistrict Court of Appeal of Florida
DecidedAugust 12, 2003
Docket1D02-2657
StatusPublished
Cited by18 cases

This text of 851 So. 2d 866 (REPUBLIC SERVICES OF FLORIDA v. Poucher) 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
REPUBLIC SERVICES OF FLORIDA v. Poucher, 851 So. 2d 866, 2003 WL 21910630 (Fla. Ct. App. 2003).

Opinion

851 So.2d 866 (2003)

REPUBLIC SERVICES OF FLORIDA, L.P., f/k/a Southland Waste Systems of Jax., Inc., Appellant,
v.
Judith POUCHER, Appellee.

No. 1D02-2657.

District Court of Appeal of Florida, First District.

August 12, 2003.

*867 Richard A. Sherman, of Richard A. Sherman, P.A., Ft. Lauderdale; and Dale Hightower, of Hightower & Weiser, P.A., Miami, for Appellant.

Hugh Cotney, of Hugh Cotney, P.A.; and C. Holt Smith, Jacksonville, for Appellee.

BROWNING, J.

Republic Services of South Florida, L.P. (Republic Services), the defendant in the *868 lower tribunal,[1] appeals an order granting in part a motion for additur filed by the appellee/plaintiff, Judith Poucher. Republic Services contends that the trial court erred as a matter of law in finding the jury's verdict inconsistent; and in granting the motion for additur in the amount of $20,000.00 for future medical expenses and in the amount of $963.97 for past medical expenses. Concluding that the granting of the motion for additur constitutes a clear abuse of discretion, we reverse the order and remand with instructions to the trial court to reinstate the jury's verdict.

Poucher filed a negligence action against Republic Services alleging that she had suffered serious, permanent personal injuries on August 3, 1999, when an employee of Republic Services (then known as Southland Waste Systems of Jax., Inc.), without a warning, tossed aside (at shoulder height) an empty recycling bin, which struck Poucher on the right chin and jaw as she proceeded around the driver's side of the stationary recycling truck during a neighborhood walk. Poucher claimed that the blow had stunned her and caused tremendous pain on the right side of her face and a buzzing sound in her left ear. It is undisputed that Republic Services had a safety rule prohibiting throwing or tossing recycling bins into yards, and the defense conceded some degree of negligence. However, Republic Services denied that the recycling bin incident caused Poucher's injuries. The driver of the recycling truck, Robert Hutchinson, testified that after Poucher was struck by the bin, he inquired about her condition, and Poucher said she was fine and indicated the driver did not need to call his supervisor.

Years before the recycling bin incident, Poucher was diagnosed as having an injury to her temporomandibular joint (TMJ). At the trial, Poucher's attorney argued that the recycling bin incident had caused a permanent injury that aggravated Poucher's TMJ condition, narrowed her mouth opening, required her to use a Therabite device (to stretch the mouth), and resulted in constant pain comparable to a toothache. On May 30, 2001, i.e., after the recycling bin incident but before the trial, Poucher felt sick, fainted in the bathroom, and landed on her face while not wearing her bite guard, bruising her jaw and sustaining bite marks on her lips and inside her mouth. The defense contended that any worsening of Poucher's condition after the recycling bin incident is entirely or primarily the result of her progressively worsening, pre-existing TMJ condition or her fall.

Poucher was in her early 50s at the time of the trial. She has a Ph.D. and taught freshman English at the community college. She claimed $1,927.97 in past medical expenses. Given the mortality tables suggesting her life expectancy was 27 more years, she sought an award of $15,000.00-$40,000.00 for future medical expenses. Her counsel asserted Poucher's claim of $10,000.00-$20,000.00 for past pain and suffering and at least $100,000.00 for future pain and suffering.

The jury returned a verdict finding that Republic Services' negligence was the legal cause of Poucher's damages and that Poucher was not comparatively negligent. For past medical expenses, the jury awarded $964.00, or one-half the amount claimed. The jury awarded zero for future medical expenses. The jury awarded $1.000.00 and $3,000.00, respectively, for past and future pain and suffering, which could include disability, physical impairment, disfigurement, mental anguish, inconvenience, *869 or loss of capacity for enjoyment of life. The trial court entered a final judgment in accordance with the verdict.

Poucher filed a motion for additur and a motion for new trial as to damages only. She alleged that the award for past medical expenses and the zero award for future medical expenses are contrary to the evidence. She argued that the awards for past and future pain and suffering and other non-economic damages are grossly inadequate and are totally inconsistent with the jury's finding Republic Services liable. While acknowledging her pre-existing TMJ condition, Poucher asserted that her pain increased and became constant and permanent, that her impairment rating was 10% of the body as a whole, and that her mouth opening was permanently limited to no more than 33 mm. (compared to a normal mouth opening of 40-50 mm. for someone Poucher's age) after the recycling bin incident.

Republic Services filed a response contending that as Poucher's TMJ had progressively worsened and had not been aggravated by the recycling bin incident, the verdict is reasonable because the jury attributed most of Poucher's problems and her need for treatment and medication to causes other than being struck by the recycling bin; and because the jury considered the problems resulting from the recycling bin incident to be only temporary. Republic Services opposed Poucher's motions to tax costs and for a new trial on damages. No objection to the verdict as being inconsistent was made before the jury was discharged. After a motion hearing, the trial court granted an additur of $20,000.00 for future medical damages and an additional $963.97 for past medical damages (which, with the jury's award, totaled the $1,927.97 claimed for past medical expenses). An additur was denied as to past and future non-economic damages such as pain and suffering. The court found an inconsistency in the jury's verdict allowing an award for future pain and suffering but awarding zero for future medical expenses. The motion to tax costs was granted.

Issue of Inconsistent Verdict

"A verdict is clothed with a presumption of regularity and is not to be disturbed if supported by the evidence." Sweet Paper Sales Corp. v. Feldman, 603 So.2d 109, 110 (Fla. 3d DCA 1992) (on motion for clarification). The Fourth District Court has characterized an inconsistent verdict as follows:

Where the findings of a jury's verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court's judgment based thereupon is erroneous.

Crawford v. Dimicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968). As the alleged error is one of law, it is subject to a de novo standard of review. Republic Services argues, first, that there is no inconsistency in the verdict, for the evidence supports a reasonable conclusion that although Poucher might experience some future pain and suffering, etc., resulting from the recycling bin incident, her future need for medical treatment or medical expenses, if any, will arise solely from other causes. Cf. Allstate Ins. Co. v. Manasse,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Blue Water Coast Services, LLC and Jacqueline Hyatt v. Maize
District Court of Appeal of Florida, 2024
Ortega v. Belony
185 So. 3d 538 (District Court of Appeal of Florida, 2015)
Felton v. State
172 So. 3d 522 (District Court of Appeal of Florida, 2015)
Diana Coba, etc. v. Tricam Industries, Inc.
164 So. 3d 637 (Supreme Court of Florida, 2015)
Hi-Shear Technology Corp. v. United Space Alliance, LLC
1 So. 3d 195 (District Court of Appeal of Florida, 2008)
Boza v. Carter
993 So. 2d 561 (District Court of Appeal of Florida, 2008)
Grainger v. Wald
982 So. 2d 42 (District Court of Appeal of Florida, 2008)
Clifton Corporation v. Totalbank
971 So. 2d 900 (District Court of Appeal of Florida, 2007)
Garrett v. Miami Transfer Co., Inc.
964 So. 2d 286 (District Court of Appeal of Florida, 2007)
Moore v. Perry
944 So. 2d 1115 (District Court of Appeal of Florida, 2006)
Kings Gourmet Market, Inc. v. Hertz-Kusz
941 So. 2d 1195 (District Court of Appeal of Florida, 2006)
TERRY PLUMBING & HOME SERVICES v. Berry
900 So. 2d 581 (District Court of Appeal of Florida, 2004)
Russell v. KSL Hotel Corp.
887 So. 2d 372 (District Court of Appeal of Florida, 2004)
Parkerson v. Nanton
876 So. 2d 1228 (District Court of Appeal of Florida, 2004)
Frank v. Wyatt
869 So. 2d 763 (District Court of Appeal of Florida, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
851 So. 2d 866, 2003 WL 21910630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/republic-services-of-florida-v-poucher-fladistctapp-2003.