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Miami-Dade County6/22/2005
Before LEVY, C.J., and CORTIÑAS, and ROTHENBERG, JJ.
The instant case arose from an accident involving a County transit bus upon which Ms. Merker was riding. Ms. Merker was wheelchair bound and rode the County transit bus to get to and from her job . The evidence reflects that on the day in question Ms. Merker's wheelchair was latched to the bus but that she was not wearing a bus lap belt. Instead, Ms. Merker was secured only by her wheelchair belt strap. The trial testimony reflects that a vehicle cut the transit bus off, forcing the bus driver to utilize the emergency brake. As a result of the sudden stop, Ms. Merker was thrown from her wheelchair, and sustained multiple fractures to her lower extremities. Ms. Merker was immediately taken to the hospital, and remained there for several months with additional medical conditions. Ultimately, Ms. Merker expired.
Mr. Merker brought a Wrongful Death action against the County, claiming that the County's negligence, in failing to assure that Ms. Merker was strapped by the bus lap belt, was the legal cause of Ms. Merker's death. At trial, evidence was presented that the bus was cut-off by another, unknown driver, forcing the bus to make the sudden stop which caused Ms. Merker to be ejected from her seat. Additionally, conflicting evidence was presented on the issue relating to the lap belt, i.e., whether Ms. Merker declined to wear the County bus lap belt or whether the County bus lap belt did not fit and the County was aware that the bus driver previously requested a lap belt extension. The jury heard conflicting testimony from several experts regarding the cause of Ms. Merker's death. Most agreed, however, that the major contributing factor to Ms. Merker's cause of death was respiratory failure. The jury returned a verdict against the County, finding the County 100 percent negligent and specifically finding that neither Ms. Merker nor the second driver contributed to the negligence.
Mr. Merker filed a Motion for New Trial, challenging the jury's finding that he, as the surviving spouse, did not sustain any damages. The County filed a Motion for New Trial on the Issue of Liability, and a Motion for Judgment Notwithstanding the Verdict, alleging that the manifest weight of the evidence showed that Ms. Merker and the Fabre defendant driver were contributorily negligent. After a hearing on the motions, the trial court entered the Order on appeal. Specifically, the trial court granted Mr. Merker's Motion for New Trial on the issue of damages as it pertains to his claim as surviving husband; denied the County's Motion for Judgment Notwithstanding the Verdict; and granted in part the County's Motion for New Trial on the issue of liability as it relates to the contributory negligence claim. Mr. Merker initially appealed from the Order and the County cross-appealed. Mr. Merker voluntarily dismissed his appeal. Thus, only the County's cross-appeal remains.
We affirm the trial court's Order in its entirety.
NEW TRIAL ON MR. MERKER'S CLAIM
The first issue raised by the County addresses the portion of the Order granting Mr. Merker's Motion for New Trial on the issue of damages as they pertain to Mr. Merker's consortium claim.
When reviewing an order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge, and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion; if the appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. See Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla.
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