Torts
— Automobile accident — Permanent injury — Error to enter directed verdict
in favor of defendant on issue of permanency where plaintiff presented expert
testimony from treating physician and consulting neurologist that he had
sustained permanent injuries as result of accident

RALPH LEON JAMES, Appellant, v. CITY OF TAMPA, Appellee. 2nd
District. Case No. 2D15-1754. Opinion filed June 10, 2016. Appeal from the
Circuit Court for Hillsborough County; Steven Scott Stephens, Judge. Counsel:
Thomas John Dandar of Dandar Law Group, P.A., Tampa, for Appellant. Julia
Mandell, City Attorney, and Kristin Serafin Ottinger, Assistant City Attorney,
Tampa, for Appellee.

(WALLACE, Judge.) Ralph Leon James appeals a final judgment
entered after a jury trial on his action against the City of Tampa (“the City”)
for personal injuries stemming from a collision between a sanitation truck
owned and operated by the City and an automobile in which Mr. James was a
passenger. Because Mr. James presented expert testimony in support of his claim
of a permanent injury, the trial court erred in directing a verdict on that
issue in favor of the City. Accordingly, we reverse.

I.
THE FACTS AND

PROCEDURAL
BACKGROUND

On April 16, 2011, a sanitation truck owned and operated by
the City backed up and collided with an automobile in which Mr. James was a
passenger. At the time of the collision, the sanitation truck was moving
slowly, and the driver of the automobile had begun backing up in an
unsuccessful attempt to avoid being hit. Mr. James contended that the City’s
truck backed up and struck the automobile twice; the City asserted that only
one collision had occurred. This factual dispute was an issue at trial, but it
is not pertinent to our resolution of this case.

Mr. James had been involved in another crash on December 13,
2010, approximately four months before the collision with the City’s truck. In
the earlier crash, Mr. James had been a passenger in a truck that was “T-boned”
by another vehicle. Mr. James had first sought treatment with his treating
physician for the injuries sustained in the earlier incident on March 16, 2011,
one month before the second crash.

On May 16, 2012, Mr. James filed an action against the City
for damages resulting from the April 16, 2011, crash involving the sanitation
truck. The case went to trial in December 2014. At trial, the City admitted
that its driver had been negligent. However, the City denied that Mr. James had
suffered any permanent injury stemming from the second crash. The City asserted
that Mr. James had sustained — at most — a minor aggravation of his injuries
from the first crash and that any injury stemming from the second crash had
been resolved long before the trial.

At the conclusion of the presentation of all the evidence in
the case, the trial court entered a directed verdict in favor of the City on
the issue of permanency. Thus the jury was not permitted to consider whether
Mr. James had sustained a permanent injury resulting from the collision with
the City’s sanitation truck, and, if so, the amount of his damages from such an
injury. Instead, the only issues submitted to the jury were the determination
of Mr. James’s past and future medical expenses resulting from the April 16,
2011, incident and the amount of his past lost wages resulting from the
incident. The jury rendered a verdict in favor of Mr. James for $3315.55 in
past medical expenses but nothing for either future medical expenses or past
lost wages. The trial court denied Mr. James’s motion for a new trial, and it
entered a final judgment in his favor in accordance with the jury’s verdict.
This appeal followed.

On appeal, Mr. James challenges the trial court’s entry of
the directed verdict in favor of the City on the issue of permanency. His
points on appeal include several other claims of error arising from adverse
rulings made during the trial of the case. We need address only Mr. James’s
argument about the trial court’s ruling directing a verdict on the issue of
permanency in favor of the City.

II.
THE ENTRY OF DIRECTED VERDICTS AND

THE
STANDARD OF REVIEW

This court has stated the circumstances under which a trial
court may properly grant a motion for a directed verdict and the standard of
review applicable to appellate consideration of such a ruling as follows:

A
motion for directed verdict should be granted only where no view of the
evidence, or inferences made therefrom, could support a verdict for the
nonmoving party. In considering a motion for directed verdict, the court must
evaluate the testimony in the light most favorable to the nonmoving party and
every reasonable inference deduced from the evidence must be indulged in favor
of the nonmoving party. If there are conflicts in the evidence or different
reasonable inferences that may be drawn from the evidence, the issue is factual
and should be submitted to the jury. The standard of review on appeal of the
trial court’s ruling on a defendant’s motion for directed verdict is the same
test used by the trial court in ruling on the motion.

Sims v. Cristinzio, 898 So. 2d 1004, 1005-06
(Fla. 2d DCA 2005) (citations omitted).

III.
DISCUSSION

In considering the issue of whether the entry of the
directed verdict in this case was error, we are guided by the teaching of the
Florida Supreme Court in Wald v. Grainger, 64 So. 3d 1201 (Fla. 2011).
Although the issue before the court in Wald concerned the grant of a
directed verdict on the issue of permanency in favor of a plaintiff, the Wald
court’s analysis is instructive here. The court reminds us that
“[d]eterminations about the permanency of an injury are generally made
by juries.” Id. at 1204. Reasoning by analogy from the discussion in Wald,
we deduce that only where the evidence of injury and causation is such that no
reasonable inference could support a jury verdict for the plaintiff may a trial
court properly direct a verdict on the permanency issue for the defendant. See
id. “A plaintiff can establish a prima facie case of permanency by
presenting expert testimony of permanency.” Id. If the defendant
“present[s] countervailing expert testimony, severely impeach[es] the
plaintiff’s expert, or present[s] other evidence” conflicting with the
plaintiff’s evidence, “a jury question is presented.” Id. at 1204-05.
Only if the plaintiff fails to present evidence of permanency may a directed
verdict on that issue in favor of the defendant properly be entered. See
id.

In this case, Mr. James presented expert testimony from his
treating physician and a consulting neurologist that he had sustained permanent
injuries as a result of the crash involving the City’s truck. Notably, Mr.
James’s treating physician had first examined and treated him after the
December 2010 collision and before the April 2011 incident for which Mr. James
was claiming damages at trial. Thus the treating physician was in a position to
determine the extent of Mr. James’s injuries that predated the April 2011
collision and the injuries that may have arisen after it. To be sure, the City
was able to blunt the force and effect of this evidence by cross-examining Mr.
James’s experts, by presenting countervailing expert testimony, and by
presenting other evidence at the trial. But the City’s presentation — however
effective it may have been — did nothing more than create a jury question on
the issue of permanency. It follows that the trial court erred in weighing the
conflicting evidence on the issue of permanency and in directing a verdict on
that issue in favor of the City. See id.; see also Kwader
v. Pandolfo, 711 So. 2d 1382, 1383 (Fla. 5th DCA 1998) (holding that the
trial court erred in directing a verdict on permanency in favor of the
defendant where there was conflicting evidence on that issue).

IV.
CONCLUSION

For the foregoing reasons, we reverse the final judgment and
remand for a new trial on the issue of damages. Our resolution of the issue
involving the directed verdict on permanency makes it unnecessary to address
Mr. James’s remaining points on appeal.

Reversed and remanded for a new trial on damages. (SILBERMAN
and BLACK, JJ., Concur.)

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