SHAWNA PARKERSON, APPELLANT,
v.
PADGET NANTON AND TRAILER BRIDGE, INC., A FOREIGN CORPORATION LICENSED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEES
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Shawna Parkerson appealed the denial of her motions for directed verdict, judgment notwithstanding the verdict, additur, and new trial in a personal injury action arising from a motor vehicle accident. The Florida District Court of Appeal affirmed, finding competent substantial evidence supported the jury's conclusion that her post-traumatic stress disorder was not permanent.
The court affirmed all denials of Parkerson's motions, holding that competent substantial evidence supported the jury's verdict that her post-traumatic stress disorder was not permanent. The court declined to adopt a theory that counsel's statements constitute judicial admissions and reaffirmed that statements by counsel not made under oath are not evidence under Florida law. The court held that evidence of marijuana and alcohol use was properly admitted as relevant to depression, an element of post-traumatic stress disorder.
[1] A jury verdict should not be directed if there is any competent substantial evidence upon which the jury could lawfully find for the nonmoving party.
[2] Statements of counsel not made under oath do not constitute evidence in Florida absent a stipulation.
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Join FLexlaw to unlock all legal intelligence“viewing evidence in light most favorable to nonmoving party, if there is any evidence upon which a jury could lawfully find for nonmoving party, a verdict should not be directed”
Establishes the standard for reviewing denial of directed verdict motions—competent substantial evidence supporting the jury's verdict precludes directed verdict
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Join FLexlaw to unlock all legal intelligenceShawna Parkerson was injured in a motor vehicle accident in which her father was fatally injured. She brought a personal injury action against Padget …
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PER CURIAM.
Shawna Parkerson, the plaintiff below in this personal injury action arising out of a motor vehicle accident in which she was injured and her father was fatally injured, appeals an order in the favor of Padget Nanton and Trailer Bridge, Inc., appellees, which denied appellant’s renewed motion for directed verdict and her motions for entry notwithstanding the verdict, for ad-ditur, and for new trial. We affirm all issues raised on appeal.
We find that there was competent substantial evidence upon which the jury could have concluded that appellant’s post-traumatic stress disorder was not permanent. Thus, we find no error in denying the appellant’s motions. See Howell v. Winkle, 866 So. 2d 192, 195 (Fla. 1st DCA 2004)(viewing evidence in light most favorable to nonmoving party, if there is any evidence upon which a jury could lawfully find for nonmoving party, a verdict should not be directed); Allstate Ins. Co. v. Manasse, 707 So. 2d 1110 (Fla.1998)(jury could find that an award of economic damages for palliative care was reasonable, while at the same time finding that an award for future pain and suffering either was not proven by greater weight of evidence or was otherwise not compensable); Republic Servs. of Florida v. Poucher, 851 So. 2d 866, 870 (Fla. 1st DCA 2003)(additur not appropriate where the jury could have reached its verdict in a manner consistent with the evidence adduced).
Appellant also asserts that a directed verdict was required because certain statements of appellees’ counsel made in opening and closing argument constituted a judicial admission as to the permanency of appellant’s post-traumatic stress disorder. Although we recognize that this theory has been adopted in other jurisdictions, see, e.g., Childs v. Franco, 563 F.Supp. 290, 292 (E.D.Pa.1983); Larson v. A.T.S.I., 859 P. 2d 273, 275 (Col.App.1993); Lowe v. Kang, 167 Ill.App.3d 772, 118 Ill.Dec. 552, 521 N.E. 2d 1245, 1247-48 (1988); Walter v. Wal-Mart Stores, Inc., 748 A. 2d 961, 967 (Me.2000); Kohne v. Yost, 250 Mont. 109, 818 P. 2d 360, 362 (1991); and Francis v. Pountney, 972 P. 2d 143, 147 (Wyo.1999); but see Kuzmic v. Kreutzmann, 100 Wis.2d 48, 301 N.W. 2d 266 (Ct.App.1980), we decline to adopt it under the circumstances here. Further, under Florida law, absent a stipulation, statements of counsel not made under oath are not evidence. See Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995); State v. Thompson, 852 So. 2d 877, 878 (Fla. 2d DCA 2003); and Sloan v. Sloan, 393 So. 2d 642, 644 (Fla. 4th DCA 1981); see also section 1.1. Florida Standard Jury Instructions in Civil Cases (“The statements that the attorneys now make and the arguments that they later make are not to be considered by you ... as evidence in the case ... ”).
Finally, the trial court did not abuse its discretion in admitting into evidence the appellant’s use of marijuana and alcohol. Unlike Nichols v. Benton, 718 So. 2d 925, 926 (Fla. 1st DCA 1998), where we held that the trial court abused its discretion in admitting similar evidence because there was no record evidence establishing relevancy, here the evidence of marijuana and alcohol use was relevant to appellant’s depression which was an element of her post-traumatic stress syndrome. The medical testimony in the record shows that the use of marijuana and alcohol could contribute to a person’s symptoms of depression and affect negatively the effectiveness of anti-depression medication.
AFFIRMED.
WOLF, C.J., ERVIN AND VAN NORTWICK, JJ., CONCUR.
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Donohue v. State, 925 So. 2d 1163 (Fla. 4th DCA 2006)…It is, of course, fundamental that representations by counsel, absent a stipulation, when not made under oath and subject to cross-examination, are not evidence.” Sloan v. Sloan, 393 So. 2d 642, 644 (Fla. 4th DCA 1981); see also Parkerson v. Nanton, 876 So. 2d 1228, 1229-30 (Fla. 1st DCA 2004) (affirming denial of motion for directed verdict and noting that statements by defendants’ counsel in opening and closing argument did not constitute judicial admissions as to permanency of plaintiffs post-traumatic stre…
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Shaw v. Vidya S. Jain, M.D., Vidya S. Jain, P.A., 914 So. 2d 458 (Fla. 1st DCA 2005)…ype alleged was irrelevant and required a new trial because no evidence demonstrated any causal relationship between the drug and alcohol use of the plaintiff mother and the injuries sustained by her baby). [*461] Jain relies on Parkerson v. Nanton, 876 So. 2d 1228 (Fla. 1st DCA 2004), a prior decision of this court which he maintains reaches a contrary result on similar facts. However, the opinion in that case contains no recitation of the testimony. A prior opinion has precedential value only to the extent t…
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Authorities Cited
- Allstate Ins. Co. v. Myrda Manasse, 707 So. 2d 1110 (Fla. 1998)
- Republic Servs. OF Fla., L.P. v. Poucher, 851 So. 2d 866 (Fla. 1st DCA 2003)
- Howell v. Winkle, 866 So. 2d 192 (Fla. 1st DCA 2004)
- Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995)
- McComiskey v. McComiskey, 852 So. 2d 877 (Fla. 5th DCA 2003)
- Sloan v. Sloan, 393 So. 2d 642 (Fla. 4th DCA 1981)
- Nichols v. Benton, 718 So. 2d 925 (Fla. 1st DCA 1998)
- In the Interest of W. S. v. State, 393 So. 2d 642 (Fla. 4th DCA 1981)