FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-4661
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KAITLYN R. TURNER,
Appellant,
v.
RICHARD GAMIZ,
Appellee.
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On appeal from the Circuit Court for Duval County.
Gary L. Wilkinson, Judge.
September 29, 2021
B.L. THOMAS, J.
Appellant was involved in an automobile accident, and
Appellee admitted liability. The only trial issues were related to
damages, causation, and permanency of injury. Although the jury
returned a verdict in favor of Appellant, the jury did not address
whether Appellant was entitled to damages relating to the
aggravation of a preexisting condition, because the trial court
excluded the jury instruction and related testimony on this issue.
We reverse and remand for a new trial on damages.
Dr. Powell, an expert witness for Appellant, testified that a
review of Appellant’s medical records showed that Appellant had
headaches before the accident that became more frequent and
persistent after the accident. He testified that Appellant’s medical
records indicated that her chiropractor had diagnosed her with
migraines before the accident. The records also showed that after
the accident, Appellant experienced escalating migraines, which
was uncommon for migraine patients. He further opined that
Appellant suffered from migraine headaches that were likely
caused by the accident.
Appellant’s father testified that he learned Appellant’s
migraines were permanent three days after the accident. He stated
that was the only time Appellant had complained of migraines to
him.
Appellant testified that before the accident, she did not know
what a migraine was, but she experienced headaches on the left
side of her head. After the accident, she experienced chronic
migraines on the right side of her head. She experienced these
migraines four to five days a week, and the pain from the
migraines was sometimes incapacitating.
On cross-examination, Appellee’s counsel asked Appellant if
she had migraines before the accident. Appellant responded:
I don’t know what I had. I didn’t go to a neurologist. We
have a few documents that say migraines. If we want to
call those migraines, but it is not even close to what I am
experiencing now. It is not even close. I wish I could
describe to you the pain of which I have experienced after
this accident and how the headaches—let’s just call them
headaches—the headaches before in law school and
packing and whatnot and daily life, and the headaches
that are now a part of my daily life are drastically
different.
Appellant rested, and Appellee requested an itemized verdict
form. The parties discussed the itemized verdict form and the
aggravation instructions. The trial court stated there was no
evidence as to the aggravation of a preexisting condition, and
Appellee then moved to remove the aggravation issue from the jury
instructions and verdict form. Appellee argued that Appellant had
tried the case as a new injury, rather than as an aggravated injury,
because Appellant had failed to show that she had migraines
before the accident. After the parties and the trial court reviewed
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the verdict form and jury instructions, Appellee moved for directed
verdict at the trial court’s invitation. The trial court granted
Appellee’s motion, reasoning there was no evidence of an
aggravation of a preexisting condition. The trial court ordered the
aggravation issue be removed from the jury instructions and
verdict form.
Appellant moved for reconsideration, arguing that her
chiropractor diagnosed her with a migraine before the accident,
and that Dr. Powell testified her migraines were aggravated by the
accident. Despite stating, “I don’t disagree with you that,
theoretically, you had the medical evidence; that yes, we had
migraines that existed. They were greatly aggravated,” the trial
court denied Appellant’s motion for rehearing.
Appellee then presented his case. Before the jury returned a
verdict, the jury submitted three questions to the court, including
a question about whether Appellant had migraines before and
whether the accident could worsen her preexisting diagnosis. The
trial court concluded there was no way to answer the question as
the parties’ cases were closed. Appellant agreed but argued that
the question underscored the need to include the aggravation issue
on the verdict form. The jury returned a verdict in favor of
Appellant and awarded her damages for her ambulance ride and
emergency room visit on the day of the accident, in the amount of
$1,428.
Appellant moved for a new trial, arguing, in part, that the
trial court committed reversible error in granting Appellee’s
motion for directed verdict on the issue of aggravation of a
preexisting condition, and that the jury did not receive an essential
instruction on aggravation of a preexisting condition. The trial
court denied the motion and entered a final judgment.
We find the trial court erred by granting Appellee’s motion for
directed verdict. “An appellate court reviewing the grant of a
directed verdict must view the evidence and all inferences of fact
in the light most favorable to the nonmoving party, and can affirm
a directed verdict only where no proper view of the evidence could
sustain a verdict in favor of the nonmoving party.” Owens v. Publix
Supermarkets, Inc.,
802 So. 2d 315, 329 (Fla. 2001); see also Harris
v. Gandy,
18 So. 3d 569, 571 (Fla. 1st DCA 2009) (stating that a
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motion for directed verdict should not be granted if there are any
conflicts in the evidence and that “[m]otions for directed verdict
are rarely appropriate in negligence cases.”) The trial court should
have instead limited its ruling to whether the instruction on the
aggravation issue should have been given, and we hold that it
should have been provided to the jury.
“A trial court’s ruling on a jury instruction is reviewed for an
abuse of discretion.” Connell v. Riggins,
944 So. 2d 1174, 1181 (Fla.
1st DCA 2006). A trial court abuses its discretion when it fails to
give a proposed instruction that is (1) an accurate statement of the
law, (2) supported by the facts of the case, and (3) necessary for the
jury to properly resolve the issues, so long as the subject of the
proposed instruction is not covered in other instructions given to
the jury and the failure to instruct is shown to be prejudicial. R.J.
Reynolds Tobacco Co. v. Jewett,
106 So. 3d 465, 467 (Fla. 1st DCA
2012).
Here, the trial court abused its discretion when it failed to give
the jury instruction on aggravation of a preexisting condition.
First, the parties do not argue, and the record does not indicate,
that the proposed instruction on the aggravation of a preexisting
condition was an inaccurate statement of the law. See
id. at 467.
Second, the facts established at trial supported an instruction
on the aggravation issue. See
id. at 469. Florida Standard Jury
Instruction (Civil) 501.5a states:
If you find that the (defendant(s)) caused a bodily
injury, and that the injury resulted in [an aggravation of
an existing disease or physical defect] . . . you should
attempt to decide what portion of (claimant’s) condition
resulted from the [aggravation] . . . . If you can make that
determination, then you should award only those
damages resulting from the [aggravation] . . . . However,
if you cannot make that determination, or if it cannot be
said that the condition would have existed apart from the
injury, then you should award damages for the entire
condition suffered by (claimant).
The evidence supported an instruction on the aggravation
issue because there was evidence that Appellant’s preexisting
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migraines were aggravated by the accident. Despite Appellant’s
testimony that she did not have migraines before the accident, Dr.
Powell testified that Appellant’s medical record indicated she had
chronic migraines before the accident. Dr. Powell also testified that
these migraines escalated after the accident, and Appellant
testified that if her previous headaches were migraines, they were
“not even close” to what she experienced after the accident.
Third, the instruction was necessary for the jury to properly
resolve the issue. See Jewett,
106 So. 3d at 467. “In determining
whether a particular instruction is necessary, ‘the proper test is
not whether the jury was actually misled, but whether the jury
might reasonably have been misled’ by the absence of the proposed
instructions.”
Id. at 469 (quoting Snedegar v. Arnone,
532 So. 2d
717, 719 (Fla. 4th DCA 1988)). Absent the instruction on
aggravation of a preexisting condition, the jury was left to guess
whether it could award Appellant damages for her preexisting
condition that was aggravated by the accident. See
id. Indeed, the
jury expressed its confusion by asking the trial court for
clarification on the factual issue of aggravation. See id. at 471
(“While we independently find sufficient prejudice to warrant
reversal, we note that Florida appellate courts have found
prejudice, and reversed the failure to give requested instructions,
when juries demonstrate an inability to properly resolve factual
disputes by asking questions during deliberations that relate to
the topic of proposed instructions.”). Under these circumstances,
the failure to give the jury instruction on the aggravation issue
might have reasonably misled the jury, thereby warranting
reversal. See id.
In conclusion, the trial court’s failure to give the instruction
on the issue of aggravation of a preexisting condition, despite
acknowledging that evidence established Appellant suffered from
migraines before the accident and those migraines were
aggravated by the accident, constitutes reversible error. We hold
that because there was evidence of aggravation, it was error to
exclude the jury instruction.
REVERSED and REMANDED.
KELSEY and TANENBAUM, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Leigh Garner Mooney of Davis, Broussard & Steger, PLLC,
Fernandina Beach, for Appellant.
Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Geneva
R. Fountain of Boyd & Jenerette, P.A., Jacksonville; and Melody
K. Toma of Law Offices of Robert J. Smith, Jacksonville, for
Appellee.
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