Florida Case Law

Appellants, v. WHITEHURST FAMILY, INC., Appellee. Case No.
3D05-2041. District Court Of Appeal of Florida, Third
District. Opinion filed December 20, 2006.


An Appeal from the Circuit Court for Monroe County, Luis M.
Garcia, Judge.

Homerbonner and Douglas F. Eaton, for appellants.

George, Hartz, Lundeen, Fulmer, Silsby & Galicia, and
Esther E. Galicia, for appellee.



Plaintiffs Carol and Scott Frasher appeal an adverse final
judgment and defendant Whitehurst Family, Inc.
cross-appeals the trial court’s jury instruction on a
possessor of land’s liability. We reverse because we
conclude that the damages awarded were inadequate as a
matter of law.

The Frashers sued Whitehurst alleging that Whitehurst was
negligent in failing properly to maintain its property that
contained the algae covered boat ramp upon which Carol
Frasher slipped, fell, and fractured her right knee cap.
Carol Frasher’s husband, Scott Frasher, asserted a
consortium claim. The undisputed evidence was that Carol
Frasher’s injury required two surgeries and subsequent
physical therapy. Dr. Ismael Montane testified that the
injury was painful, the knee cap was never going to be the
same, and that it was more likely than not that Carol
Frasher would suffer arthritis in the future. Scott Frasher
testified that, in the months immediately following the
accident, he spent most of his time at home caring for his
wife. He also acknowledged that his wife’s injury had an
effect on their intimate life.

The jury returned a verdict finding Whitehurst twenty-five
percent (25%) negligent and Carol Frasher seventy-five
percent (75%) comparatively negligent. The jury awarded
economic damages, including $5,500.00 for lost wages and
$17,500.00 for medical bills. The jury did not award any
future economic damages or non-economic damages. The
Frashers filed a motion for new trial on damages only and/or
additur arguing that the jury’s zero award of non-economic
damages was inadequate as a matter of law. The court denied
the motion without a hearing.

In Deklyen v. Truckers World, Inc., 867 So. 2d 1264, 1266
(Fla. 5th DCA 2004), the jury found the defendant seventy
percent (70%) comparatively negligent and Deklyen thirty
percent (30%) at fault, awarding monies for past medical
expenses and lost income, as well as for future medical
expenses and loss of income, but no noneconomic damages. As
in our case, no objection was made to the verdict at trial.
Id. The issue was not raised until plaintiff filed her
timely motion for a new trial, contending that the damage
award was inadequate or against the manifest weight of the
evidence. Id. The court rejected Truckers World’s argument
that the verdict, if flawed, was inconsistent, not
inadequate. Id. If such an argument had prevailed, Deklyen’s
attack on the verdict would not have been preserved for
appeal. Id. The case law requires that the issue of an
inconsistent verdict be raised before the jury is
discharged, or it is waived. Id. At that point, the trial
court can still reinstruct the jury and send it back for
further deliberations. Id. See also Cocca v. Smith, 821 So.
2d 328, 330 (Fla. 2d DCA 2002).

We agree with the analysis in Deklyen and conclude that the
verdict here was not inconsistent and that the judge should
have granted the motion for a new trial because the verdict
failed to comport with the manifest weight of the
evidence.[fn1] Deklyen, 867 So. 2d at 1267 (“When a damage
award is clearly inadequate and the issue of liability was
contested, it gives rise to a suspicion that the jury may
have compromised its verdict.”). Obviously, Whitehurst did
not and could not argue that Carol Frasher’s fracture
produced no pain and suffering to her.

We reject Carol Frasher’s position that the new trial be
on noneconomic damages only. Because we are ordering a new
trial based on the jury’s evident mingling of the issues of
liability and damages on the verdict form suggestive of
compromise, it would be illogical not to try both issues
upon remand. See Newalk v. Florida Supermarkets, Inc., 610
So. 2d 528, 529-30 (Fla. 3d DCA 1992) (new trial on all
issues required where damages award was inadequate and
liability was hotly contested resulting in 50/50 liability
split between plaintiff and defendant); Rivera v. Aldrich,
538 So. 2d 1390, 1391-92 (Fla. 3d DCA 1989) (new trial on
liability and damages required where liability not
unequivocally established and jury interwove issues of
liability and damages); Borges v. Jacobs, 483 So. 2d 773,
775 (Fla. 3d DCA 1986) (new trial on all issues required
where liability not unequivocally established and damage
award was inadequate, thereby representing possible
compromise verdict). We also reject Frasher’s argument that
her husband’s loss of consortium claim was also inadequate
as a matter of law.

Because we are reversing for a new trial on Carol
Frashier’s claims, we must address the cross-appeal. The
jury was appropriately instructed pursuant to the Standard
Jury Instructions as follows:

Negligence is the failure to use reasonable care.
Reasonable care is that degree of care which a reasonably
careful person would use under like circumstances.
Negligence may consist either in doing something that a
reasonably careful person would not do under like
circumstances or in failing to do something that a
reasonably careful person would do under like

The court, however, over defense objection, gave the
following special instruction.

Where a possessor of land should anticipate the harm
which may be caused by a condition on the land, he may be
liable despite the obviousness of the hazard.

We find the instruction confusing. See Marks v. Mandel,
477 So. 2d 1036 (Fla. 3d DCA 1985); Veliz v. American Hosp.,
Inc., 414 So. 2d 226 (Fla. 3d DCA 1982); Webb v. Priest,
413 So. 2d 43 (Fla. 3d DCA 1982). Additionally, it
conflicts with the standard instruction. What the possessor
of land should do with regard to an obvious hazard is
covered in the reasonable care instruction. Carol Frasher
urges that such an instruction was necessary to prevent the
defense from arguing that the condition was so open and
obvious as to completely relieve Whitehurst of liability.
See Metropolitan Dade County v. Yelvington, 392 So. 2d 911,
912 (Fla. 3d DCA 1980). We do not believe our courts should
be giving preemptive instructions to the jury in
anticipation of improper arguments that have not yet been

In conclusion, we reverse and remand for a new trial on
both liability and noneconomic damages as to Carol Frasher


[fn1] We reject the suggestion that Deklyen is
distinguishable because Frasher suffered a subsequent fall
approximately six weeks after the boat ramp fall. While
this fact could have justified a reduction in the award for
pain and suffering, it could not form the basis for a zero