March 16, 2000

Florida jury tight with senior citizen

By ANREW BERGH
Special to the Journal

Physical beauty. Advantageous climate. Prime tourist destination. Plentiful green space. Cosmopolitan character. Major international trading hub of the Americas.

So brags the Greater Miami Chamber of Commerce about Dade County, Fla., which encompasses the city of Miami, the Everglades National Park, and 84 miles of coastline.

Okay, that’s some of the good stuff.

But unlike the self-promotional chamber of commerce, I can be more objective. Yes, even negative. For instance, did you know Dade County citizens discriminate against octogenarians? Or, that Greater Miami is truly the Land of the Stingy Juries?

To prove my point, I respectfully submit Risley v. Chart House, Inc. – a case decided only eight days ago by a Florida appeals court.

Eva Risley was in her eighties when she dined at the Chart House restaurant in Miami.

The outing ended painfully, however, when Eva slipped and fell on landscaping stones in the walkway leaving the establishment.

The bad news was that Eva broke her right hip in the fall and had to undergo hip replacement surgery. She was hospitalized for 10 days and then had two weeks of in-patient rehabilitation and therapy.

But on the plus side, the hip surgery was a success, as Eva’s pain went away and she was able to resume walking.

Eva still wasn’t out of the woods, though, as the hip injury aggravated an old arthritic condition in her right knee. By the time she underwent knee replacement surgery and spent several more weeks in the hospital, Eva’s total medical bills were $105,000.

Eva later sued the Chart House for damages, apparently claiming the landscaping stones in the restaurant’s walkway were somehow unsafe. But when the Chart House denied liability and refused to make an acceptable settlement offer, the case proceeded to trial.

Let me tell you, Dade County juries are tough.

I’m not referring to how the jury decided fault, as its allocation of 60 percent to Eva and 40 percent to the restaurant sounds plausible enough.

On the issue of damages, however, you would’ve thought the jury itself had to pay any judgment.

As for Eva’s economic losses, the Dade County panel did award $105,000 for her past medical bills, plus another $5,000 for future medical costs. But as for non-economic losses – that is, Eva’s damages for her past and future pain and suffering, both physical and emotional – the jury awarded a giant goose egg. That’s right, not one penny for pain and suffering to an elderly woman who broke her hip, underwent two surgeries, and was hospitalized almost five weeks.

To show you how cheap the jury was, even the Chart House thought the verdict was too low. So before the jurors were let go, the parties agreed the judge should re-instruct them on damages and make them deliberate further.

A lot of good that did. Taking the hint that it had to award at least something for non-economic losses, the Dade County jurors returned a second verdict for a whopping $2,000 -- $1,000 for Eva’s past pain and suffering and another grand for her future pain and suffering.

Eva promptly moved for a new trial on the ground of inadequate damages, but to no avail. So given the jury’s finding that Eva was 60 percent at fault, the trial judge entered a net judgment for just $44,800. An appeal soon followed.

The only issue on appeal? Whether the trial court abused its discretion – that’s legalese for “screwed up” – by denying Eva’s motion for a new trial.

And in a 3-0 decision, a Florida appeals court answered with a resounding “yes.”

It’s true, said the court, that Eva had enjoyed a remarkable recovery from her injuries, especially for a senior citizen who was 82 years old. But given the gravity of her surgeries, plus the pain and suffering associated with those surgeries and Eva’s rehabilitation, the court concluded that the jury’s nominal $2,000 award was grossly inadequate and unreasonable.

The long and short of it all is that Eva gets a new trial on the issue of damages.

But it remains to be seen whether Eva will do substantially better. After all, according to the Greater Miami Chamber of Commerce, the single largest age group in Dade County, composing no less than 31 percent of the population, consists of those between 25 and 44 years of age.

From Eva’s point of view, those aren’t exactly the demographics you’d want if you’re hoping to stock the jury with other octogenarians.

Previous columns:

• Lack of warning puts 2 friends in hot water, 02-17-2000
• An eyeful of cadaver law, 01-20-2000
• There's something about LA, 01-03-2000
• Handicaps, good and bad, 12-10-1999
• An open-and-shut case, 11-25-1999
• Praise the law, 11-04-1999
• After grief comes gimme, 10-21-1999
• Cybercow meets digitruck, 10-01-1999