These requirements include establishment of:
–A duty owed by defendant to plaintiff;
–A breach of that duty;
–Proof that breach proximately caused plaintiff’s injuries;
If any one of these elements goes wanting, the entire case will fail.
Usually, to meet the last element, plaintiff will have suffered some type of injury (physical or mental) that resulted in quantifiable loss or damage.
Florida case law has in the past allowed compensation for expenses occurred for medical examination and diagnostic testing that was reasonable to determine whether an incident caused injury – even if it was later determined no personal injury resulted.
The 1997 case of Sparks-Book v. Sports Authority followed precedent, with the Third District Court of Appeal handing down the ruling. In that case, plaintiff was shopping when a camping stove was knocked accidentally off a store shelf by an employee, striking patron on the head. She later filed a civil lawsuit, along with her husband, who claimed loss of consortium. The store conceded liability, but contested damages.
The core issue was whether plaintiff’s physical ailments were attributable to the incident, and the jury answered in the negative. On appeal, the appellate court ruled at minimum, plaintiff was entitled to recover medical expenses she incurred for initial treatment/diagnostic testing reasonably necessary to ascertain whether she had suffered an injury. It’s well-known, particularly with head injuries, that initial symptoms may not be obvious to the sufferer. The court cited the 1982 Second District ruling in Blanford v. Polk County in its reasoning.
It was undisputed in Sparks-Book that an ambulance was called to the scene and plaintiff was transported to a nearby emergency room for x-rays of her jaw, shoulder and neck. The court ruled plaintiff should not be responsible to cover those damages.
However more recently, in Schwartz v. Wal-Mart Stores, Inc., the Fifth District Court of Appeal denied plaintiff motion for a new trial on similar grounds. The facts of the case were fundamentally different.
According to court records, plaintiff was shopping at a chain store when she was struck in the back by a small, “squishy” ornamental pumpkin. Employees negligently caused plaintiff to be hit – and the store conceded as much – but contested the issues of causation and damages.
The case went before a jury, which returned a zero-damages finding.
However, following trial, the court granted motion for a new trial solely for determination of damages for the initial medical valuation she sought following the incident – but nothing more. Both sides appealed – plaintiff because she wanted to pursue more than recovery of diagnostic expenses and defendant because it argued there should be no new trial at all.
Appellate court sided with defendant, finding as a matter of law, plaintiff failed to prove injury as a result of the incident. Although it was undisputed she sought medical care and treatment immediately following the incident, the court found her case fell within an exception to the rule. Jurors were allowed to return a zero-damages verdict even in spite of medical diagnostic expenses where there is sufficient evidence as to causation.
Defense expert witness testimony indicated there was no possible way the impact of that ornamental pumpkin could have caused injury to plaintiff, and appellate court agreed, thus invoking the exception.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Schwartz v. Wal-Mart Stores, Inc., Jan. 16, 2015, Florida’s Fifth District Court of Appeal
More Blog Entries:
Semian v. Ledgemere Transp., Inc. – No Bar to Recovery for Comparative Fault, Jan. 15, 2015, Fort Myers Injury Lawyer Blog