FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Pamela A.M.
Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando,
Hitchens of Hitchens and Hitchens, P.A., St. Petersburg, and
Frank DiCosola of Frank DiCosola, P.A., Pinellas Park, for
owned by Fred Meyers and driven by Ninibeth Meyers rear-ended
a car in which Bonneva Shontz was a passenger. Ms. Shontz
sued the Meyerses for negligence, and a jury returned a
defense verdict. Ms. Shontz moved for a new trial, which the
trial court granted. The Meyerses appeal. Because the trial
court failed to apply the correct legal standard to the
motion for new trial-which is whether the jury's verdict
was against the manifest weight of the evidence-we reverse
and remand for reconsideration.
9, 2014, Ms. Meyers was driving down Park Boulevard in
Seminole. It had been raining on and off, and the roads were
wet. As she neared the intersection of Park and Starkey Road,
she saw a car stop in front of her. She hit the brakes, but
there was no time to stop. Her car hit the car in front of
her. Ms. Shontz was a passenger in that car, which was driven
by her husband. The Shontzes' car was pushed into a car
in front of it, which was driven by Nicholas Bozick. The
Meyerses' car (a 2005 Chevy Aveo) was totaled. The
Shontzes' car (a 2013 Chevy Equinox) had to have its rear
bumper replaced. Mr. Bozick's car (a 2013 Toyota
Highlander) had about $740 of damage. No one went to the
hospital on the day of the accident.
months later, Ms. Shontz sued Mr. and Ms. Meyers for physical
injuries she says she suffered in the accident. Her complaint
alleged that Ms. Meyers negligently caused the wreck, that
the wreck caused Ms. Shontz's injuries, and that Mr.
Meyers was vicariously liable for Ms. Meyers's negligence
under the dangerous instrumentality doctrine. The Meyerses
denied those allegations and, in addition, contended that Mr.
Shontz negligently operated his vehicle and that his
negligence caused the accident. The case went to discovery
and, after that, to trial.
Ms. Meyers negligently caused the accident and whether the
accident caused Ms. Shontz's injuries were hotly disputed
at trial. Ms. Shontz's theory was that as the rear
driver, Ms. Meyers was necessarily negligent, that Ms. Meyers
was driving too fast on a rainy day, and that the accident
injured Ms. Shontz's back or aggravated her existing back
problems. The Meyerses, on the other hand, argued that the
Shontzes' car suddenly changed lanes and left Ms. Meyers
without room to stop. They also contended that Ms.
Shontz's back problems were not caused by this accident,
but rather by scoliosis-a condition involving a curvature of
the spine- degenerative changes in the spine, a different car
accident in 1995, or other incidents earlier in Ms.
evidence on the issue of negligence came from three
witnesses-Mr. Shontz, Mr. Bozick, and Ms. Meyers. Mr. Shontz,
who was driving the Shontzes' car, testified that before
the accident he and Ms. Shontz left a Wal-Mart Neighborhood
Market and drove a couple of miles on Park Boulevard toward
Starkey Road. When he got to the intersection of Park and
Starkey, he stopped for a red light behind Mr. Bozick's
car, where he sat for "about five seconds or so."
He heard skidding tires and told Ms. Shontz to brace herself
right before they were hit by the Meyerses' car and
pushed into Mr. Bozick's car. Mr. Shontz talked to Ms.
Meyers at the accident scene, and she said that Mr. Shontz
had cut her off. At trial, Mr. Shontz could not remember
whether he changed lanes before the accident happened.
Bozick's testimony was a little more complicated. He
testified that after he stopped at the light at Park and
Starkey, he saw the Shontzes' car pull in behind him and
stop. He initially could not say whether the Shontzes'
car changed lanes into the lane he was in, but after being
presented with testimony he gave at a pretrial deposition he
admitted that the Shontzes' car had switched lanes from
the right into the lane his car occupied. He said, however,
that the lane change was not "quick" or a
"zip, zip type thing." He was asked on direct
examination about how much time passed between when he
stopped at the light and when the accident happened, and he
testified both that it was "a couple of seconds"
and "three to five seconds." He then was asked on
cross-examination whether it was three to five seconds
between his seeing the Shontzes' car behind him and the
accident, to which he answered "three to seven seconds
or so-maybe a little bit longer" but acknowledged that
"it's difficult to give time." He also
testified that he thought that Ms. Meyers was "going too
fast for the road conditions at that time."
Meyers testified that before the accident she was driving
down Park at about thirty-five miles per hour. Although Park
has a forty-five-mile-per-hour speed limit in that area, she
was driving more slowly because the streets were wet. She saw
the Shontzes' car because she was traveling in the same
lane behind it. At some point, Ms. Meyers moved one lane to
the left and the Shontzes remained in the lane they were in.
That situation prevailed for a few minutes. As Ms. Meyers
approached Starkey Road, the Shontzes' car moved into her
lane, leaving only one car length between her car and theirs.
She testified that she saw the Shontzes' car coming into
her lane "all of a sudden" and that "all of a
sudden it just came in there." Ms. Meyers applied the
brakes and tried to steer into a different lane but did not
have enough time to avoid an accident.
evidence on causation came from Ms. Shontz and several
medical professionals. Much of it is in conflict. What seems
clear is that Ms. Shontz did not have any pain or, apart from
stress, other symptoms either at the scene of the accident or
immediately thereafter. She testified that three to four days
later, however, she had a headache and neck and back
stiffness. She visited her chiropractor five days
after the accident, complaining of moderate pain throughout
her back and mild pain in her neck. He gave her chiropractic
treatments. Ms. Shontz began seeing an orthopedic surgeon
about a month after the accident. An MRI revealed disc
bulges, protrusions, and herniations throughout her spine.
Her complaints grew more severe, including pain and numbness
in her left leg. She testified at trial that she is no longer
able to do things she enjoyed doing before the accident.
also clear that Ms. Shontz had issues with her back long
before the accident. She was diagnosed with scoliosis at
twenty-one. There was evidence at trial that the curvature of
the spine that comes with scoliosis can create wedging on the
vertebrae, inflammation of the nerves, arthritis, and
degenerative changes that all could cause the kinds of
symptoms of which Ms. Shontz complained. She has received
chiropractic treatment on and off since her diagnosis. Ms.
Shontz was also in a bad car accident in 1995. She was a
passenger in a car her son was driving on Interstate 275 when
another car came over two lanes and struck her son's car
on her side, causing it to spin around and slam into a
concrete divider. Afterward, she had pain in her neck,
shoulder, and lower back and suffered headaches. She treated
with her chiropractor and neurologist and was told by her
doctors that she had suffered a partial permanent injury as a
result of the accident. She hired an attorney, brought a
claim, and settled.
was no MRI or other objective evidence describing the
condition of Ms. Shontz's back before the accident and
thus no ready way to say that any particular physical
condition in her spine (e.g., a bulge or herniation) did not
exist before the accident but did exist after. Ms.
Shontz's theory that the accident caused her injuries was
based on her own subjective complaints of pain and physical
limitations after the accident that she said did not exist
before. Her orthopedic surgeon testified that her complaints
were corroborated by the results of the postaccident MRI and
opined that she suffered permanent injuries to her back as a
result of the accident. Her chiropractor opined that she
suffered a "classical whiplash injury" to her neck
and back. Ms. Shontz testified that her symptoms, need for
treatment, and ...