Parrish v. City of Orlando, ___ So. 3d ___, 36 Fla. L. Weekly D316 (Fla. 5th DCA 2/11/11)

The appellate court reversed an order denying the plaintiff’s motion for additur or new trial in a slip and fall case.  The jury found that the plaintiff was 85% comparatively negligent and awarded damages for past and future medical expenses but nothing for past or future pain and suffering.  The plaintiff sustained a comminuted proximal fracture of the left humerus and required shoulder replacement surgery, subsequent arthroscopy, and a rotator cuff repair.  After the surgery, she developed axillary nerve palsy and required another operation.  Because of an infection, she required removal of the shoulder implant, placement of an antibiotic spacer, and re-implantation. The plaintiff had a total of five surgeries, which left her with limited range of motion, severe nerve damage, and the need for medical follow-up for the remainder of her life. The defendant “offered no countervailing medical testimony” and “concede[d] error as to past noneconomic damages.”  “A jury may refuse to award future noneconomic damages when the defendant has presented evidence disputing such damages or when future noneconomic damages are uncertain or speculative.”  “However, where, as here, the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.”  “[W]hen medical evidence on permanence or causation is undisputed, unimpeached, or not otherwise subject to question based on other evidence presented at trial, the jury is not free [simply to ignore] or arbitrarily reject that evidence and render a verdict in conflict with it. . . .  Here, [the plaintiff’s] treating doctor testified that her shoulder injury was a permanent injury caused by the fall, and as the [defendant] concedes, it presented no opposing testimony. Thus there was no other medical explanation for the injury’s etiology.”  “The failure to make an award for future noneconomic damages is unreasonable when there is undisputed evidence of permanent injury and the need for treatment in the future. . . .  Here, the jury awarded [the plaintiff] future medical expenses of $10,000 per year for her thirteen-year life expectancy. Because the evidence is undisputed that the trip and fall caused [the plaintiff’s] injuries, and that she would most likely need some type of future therapy as the doctors monitor the shoulder implant, we conclude the jury should have awarded [the plaintiff] some future noneconomic damages.”