5D09-3903 Parrish v. City of Orlando

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-3903

Case Date: 02/07/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

PATRICIA PARRISH, Appellant, v. CITY OF ORLANDO, Appellee. ________________________________/ Opinion filed February 11, 2011 Appeal from the Circuit Court for Orange County, Reginald K. Whitehead, Judge. James T. Lynch, of Morgan & Morgan, P.A., Orlando, for Appellant. Martha Lee Lombardy, Orlando, for Appellee. CORRECTED Case No. 5D09-3903

ORFINGER, J. Patricia Parrish appeals the denial of her motion for additur and/or a new trial following a jury verdict in her personal injury action against the City of Orlando, Florida. The jury awarded Parrish substantial past and future economic damages, but no past or future noneconomic damages. Based on the evidence presented, Ms. Parrish contends that the verdict was either inadequate or against the manifest weight of the evidence. The City concedes error as to past noneconomic damages. We agree with Ms. Parrish that she is entitled to a new trial on all damages and reverse.

Ms. Parrish and her husband were walking to the Citrus Bowl football game when she tripped and fell on an uneven sidewalk, seriously injuring her left shoulder. She and her husband filed a negligence action against the City because the City was responsible for the maintenance of the sidewalk where the accident occurred. After her fall, Ms. Parrish began treatment with Brian Barnard, M.D., of the Jewett Orthopedic Clinic. Dr. Barnard testified that Ms. Parrish suffered a comminuted

proximal humerus fracture in her left shoulder. Due to the severity of the injury, Dr. Barnard performed shoulder replacement surgery. Ms. Parrish subsequently developed axillary nerve palsy, requiring another surgery.1 He opined that these medical

conditions were all due to the trauma/injury to her shoulder as a result of the fall. Ms. Parrish's recovery was not uneventful. She experienced post-surgical

complications that required Dr. Barnard to conduct an arthroscopy of the shoulder and a repair of the rotator cuff. Ms. Parrish's shoulder also became infected, requiring

removal of the shoulder implant and placement of an antibiotic cement spacer in her shoulder. In her final surgery, Ms. Parrish was given a new shoulder implant.

Throughout her treatment with Dr. Barnard, Ms. Parrish was also attending physical therapy. Dr. Barnard testified that the shoulder implant would need to be followed for the remainder of Ms. Parrish's life to ensure that it remained in place, maintained its function, and did not loosen or become infected. In total, Ms. Parrish had five surgeries on her shoulder and was left with a limited range of motion in her arm due to scar tissue and severe nerve damage. Dr. Barnard reported that while Ms. Parrish has specific limitations in overhead reaching, she still Dr. Barnard explained that the axillary nerve is very important for control of the shoulder. 2
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functioned well below shoulder height and up to a little over her head. He believed that she could reach the back of her head with extra effort. Dr. Barnard concluded that Ms. Parrish suffered a permanent injury to her left shoulder as a result of the fall. The City offered no countervailing medical testimony. Ms. Parrish admitted that prior to her fall, she had numerous pre-existing medical conditions, including diabetes, hypertension, and mitral valve insufficiency. She had

undergone gastric bypass surgery, a mitral valve replacement, and heart by-pass surgery. However, prior to the accident, she had no problems with her left shoulder. After the accident, she is in constant pain, and has no strength in her left shoulder as she has lost nerves and muscle. She testified that she has very limited mobility in her arm. Ms. Parrish's husband indicated that he can force her arm above her shoulder, but that it causes extreme pain. Despite her various infirmities, following the accident, Ms. Parrish and her husband travelled to the Florida Keys, North Carolina and Georgia, and also took an extended trip to Europe with a personal attendant. Following a trial, the jury allocated 85% of the negligence to Ms. Parrish, and 15% of the negligence to the City. The jury awarded $51,929.02 for past medical

expenses, and $130,000 for future medical expenses. However, the jury awarded no past or future noneconomic damages. After Ms. Parrish's motion for additur and/or new trial was denied, this appeal followed. Ms. Parrish argues that the trial court abused its discretion in denying her motion for additur or new trial because the jury's verdict was inadequate by failing to award any noneconomic damages. She contends that based on Deklyen v. Truckers World, Inc., 867 So. 2d 1264 (Fla. 5th DCA 2004), and Ellender v. Bricker, 967 So. 2d 1088 (Fla. 4th

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DCA 2007), she is entitled to a new trial on damages because the verdict fails to comport with the manifest weight of the evidence. We review a trial court's denial of a motion for additur or new trial for an abuse of discretion. Brown v. Estate of Stuckey, 749 So. 2d 490, 498 (Fla. 1999); Allstate Ins. Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla. 1998); Ellender, 967 So. 2d at 1092; Deklyen, 867 So. 2d at 1266. A verdict comes to an appellate court clothed with a presumption of regularity and should not be disturbed if supported by the evidence. Deklyen, 867 So. 2d at 1266. A trial court's consideration of a motion for additur is governed by section 768.74, Florida Statutes (2009), which requires the court to determine if the "amount [of damages awarded] is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact."

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