Thе defendant appeals a new trial order entered after a jury found the plaintiff had not sustained injury as the result of an accident in which the defendant stipulated to liability. The defendant seeks reversal of the order and reinstatement of the jury verdict. Alternatively, thе defendant requests that the new trial be limited to damages for orthopedic and soft tissue injuries. We grant the alternative relief requеsted and reverse and remand the case for entry of an order limiting the new trial to damages related to the plaintiffs orthopedic and soft tissue injuries.
The plaintiff was a back seat passenger in an automobile driven by his sister’s boyfriend and owned by Hertz. The driver lost cоntrol of the vehicle, crossing the median and rolling over several times at a high rate of speed. The plaintiff, who was fourteen years old at the time of the accident, did not seek medical treatment for approximately eight hours. He complained оf pain in his head, neck, arm, shoulder, and hip at the scene of the acci
The plaintiff saw a chiropractor three days after the accident. He chiefly complаined of neck, low back and chest pain. At the suggestion of the chiropractor, the plaintiff received a neurological evaluation nineteen days following the accident. He continued to see the chiropractor for several months.
The nеurologist noted some reduction in the defendant’s range of motion. The CT scan was unremarkable and an EEG was normal. The neurologist believed there may have been an orthopedic impairment as a result of the accident.
The plaintiff moved with his parents tо Virginia. His mother noticed changes in his personality and a decline in his academics. She had him examined by another neurologist. The nеurologist opined that the changes in the plaintiffs personality and academic performance were likely attributable to the family’s relocation to Virginia.
The family then relocated to Orlando the next year where a doctor concluded that there was evidence of brain damage in the frontal lobe area and significant executive dysfunction. Two years later, the plaintiff and his parents moved to Utah where he worked at a number of jobs for brief time periods. He was evicted from an apartment fоr creating disturbances, and arrested for DUI, marijuana and drug paraphernalia possession, and providing false identification.
After his second DUI arrest, his mother consulted a neurophysiologist. That doctor diagnosed traumatic brain injury and opined that the plaintiffs disruрtive behavior resulted from that injury.
The plaintiff and his parents moved back to Orlando in 2001, seven years after the accident. During that time, thе plaintiff had one job for approximately one week, often slept late or was up early to play baseball, ride а bike or engage in other recreation.
After yet another move in 2002 to Mount Dora, the plaintiff continued to drink and sleep exсessively. At the time of trial, the plaintiff lived in Utah with a friend, was unemployed and spent his time playing basketball and working out. He was awaiting the ski sеason to obtain employment because it would allow him to snowboard for free.
The defense stipulated that the driver of the vеhicle was negligent in causing the accident. According to the independent medical exam [IME], the plaintiff had no brain damage оr neurological impairment.
At the conclusion of the nine-day trial, the jury was presented with the following question: Was the subject motor vehicle accident a legal cause of damage to the plaintiff Matthew Gleason? The jury answered “no.” The trial court entered a final judgment pursuant to the verdict. The plaintiff filed a motion for a new trial, which the court granted.
An order granting a motion for new triаl is reviewed under an abuse of discretion standard. Brown v. Estate of Stuckey,
The most significantly disputed issue in this case was whether the plaintiff had suffered any neurological damage as a result оf the accident. The evidence in this ease sharply conflicted on this issue. However, both plaintiff’s and defendant’s experts agrеed that the plaintiff sustained some injury (orthopedic and soft tissue) as a result of the accident.
Section 59.3Í, Florida Statutes (2003) provides:
An appellate court may, in reversing a judgment of a lower court brought before it for review by appeal, by the order of reversal, if the error for which reversal is sought is such as to require a new trial, direct that a new trial be had on all the issues shown by the record or upon a part of such issues only. When a reversal is had, with direction for new trial on a part of the issues, all other issues shall be deemed settled conclusively in favor of the appellee.
The Third District had occasion to rely on this statutory provision to limit an order authorizing a new trial in North Dade Golf, Inc. v. Clarke,
Here, thе plaintiffs request for damages for closed-head injuries was directly contradicted by the evidence. In short, there was a disputed quеstion of fact, which lies within the province of the jury. However, there was no dispute that the plaintiff had sustained some injury. Therefore, the trial court correctly determined that the verdict was against the manifest weight of the evidence, but should have limited the new trial to dаmages for orthopedic and soft tissue injuries.
We reverse and remand the case to the trial court for entry of an order limiting the new trial consistent with this opinion.