United States District Court, M.D. Florida, Tampa Division
ANTHONY E. PORCELLI UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon Defendants', United
States of America, Motion for Partial Summary Judgment
(“Motion”) (Doc. 39) and Plaintiffs' Atiba
Wagner (“Mr. Wagner”) and his daughter Lealache
Wagner (“Ms. Wagner”) (collectively,
“Plaintiffs”) response in opposition thereto
(“Response”) (Doc. 40). In its Motion, Defendant
seeks partial summary judgment on the issues of causation and
damages on Count II of the complaint. A hearing on the Motion
was held on November 13, 2019. For the reasons stated at the
hearing, the Defendant's Motion for Partial Summary
Judgment (Doc. 39) is GRANTED in part and DENIED in part.
initiated this action under the Federal Tort Claims Act 28
U.S.C. § 1346(b), 2671-2680, alleging two counts of
negligence and seeking recovery for injuries and damages
sustained (Doc. 1). Plaintiffs allege that their injuries and
damages stem from a motor vehicle accident that occurred in
Tampa, Florida on December 11, 2015 between a vehicle owned
and operated by Mr. Wagner and a United States Postal Service
(“USPS”) mail truck operated by USPS employee
Justin M. Deak (Doc. 1, at ¶ 2). Plaintiffs allege that
Ms. Wagner was a passenger in Mr. Wagner's vehicle at the
time of the collision. Id. On March 16, 2018,
Plaintiffs initiated the present action against the United
States of America, asserting Defendant's vicarious
liability for their injuries and damages. Id. at 3.
Defendant now moves for partial summary judgment on the
issues of causation and damages on Count II of the complaint,
which relates to alleged injuries sustained by Ms. Wagner.
Standard of Review
judgment is appropriate where the movant demonstrates that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). A dispute about a material fact is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The existence of some factual disputes
between the litigants will not defeat an otherwise properly
supported summary judgment motion; “the requirement is
that there be no genuine issue of material
fact.” Id. at 247-48 (emphasis in original).
The substantive law applicable to the claims will identify
which facts are material. Id. at 248. In reviewing
the motion, the court must view the evidence and make all
factual inferences in a light most favorable to the
non-moving party and resolve all reasonable doubts about the
facts in favor of the non-movant. Dadeland Depot, Inc. v.
St. Paul Fire and Marine Ins. Co., 483 F.3d 1265, 1268
(11th Cir. 2007) (citation omitted).
maintain an action for negligence, a plaintiff must establish
that the defendant owed a duty, that the defendant breached
that duty, and that this breach caused the plaintiff
damages.” Fla. Dep't of Corr. v. Abril,
969 So.2d 201, 204 (Fla. 2007). As to damages, Defendant
asserts that the “only way for [Ms. Wagner] to recover
any damages” is to establish either permanent loss of
bodily function or a permanent injury (Doc. 39). In Florida,
a plaintiff cannot recover any damages in tort for pain,
suffering, mental anguish, and inconvenience in the absence
(a) Significant and permanent loss of an important bodily
(b) Permanent injury within a reasonable degree of medical
probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
Stat. § 627.737; Barry v. Silver, 2011 WL
13298553, *5 (M.D. Fla. Apr. 20, 2011).
their Response, and at the hearing on November 13, 2019,
Plaintiffs conceded that Ms. Wagner sustained no permanent
injury (See doc. 40, at ¶ 3). Therefore, she
cannot recover damages for non-economic injuries, as set
forth in the statute. Fla. Stat. § 627.737. Accordingly,