concurring cause instruction in Florida

2008In Marinelli , we rejected the argument that giving instruction 6.2(b) on the aggravation of an existing condition made up for the failure to give the concurring cause instruction in a case such as this; we wrote that the "instruction on assessing damages, standing alone, is patently insufficient protection against the risk of confusion arising by a failure to give the concurring cause instruction." 608 So.2d at 834 .

2007See id. (“the instruction on assessing damages, standing alone, is patently insufficient protection against the risk of confusion arising by a failure to give the concurring cause instruction”).

2005See, e.g., Esancy v. Hodges, 727 So.2d 308, 309 (Fla. 2d DCA 1999) (holding that such an instruction is generally required); Auster v. Gertrude & Philip Strax Breast Cancer Detection Inst., Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995) (same); Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992) (same); but see Thomason v. Gordon, 782 So.2d 896, 900-02 (Fla. 5th DCA 2001) (Harris, J., dissenting) (concluding that, in such circumstances, a concurring cause instruction is generally not appropriate because a defendant is responsible only for damage resulting from the aggravation of the preex

2002The requested instruction accurately tracks the language of Florida Standard Jury Instruction 5.1(b). [4] Thomason v. Gordon, 782 So.2d 896, 898 (Fla. 5th DCA 2001) ("Several courts have recognized that where a defendant's negligence acts in combination with a plaintiff's physical condition to produce an injury, the concurring cause instruction of 5.1(b) is mandated.") (citing Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999)); Cruz, 778 So.2d at 460 (citing Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984); Goodman v. Becker, 430 So.2

2001See Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So.2d 153 (Fla. 2d DCA 1975).

1987Thus, while the failure to give a concurring cause instruction may have been error, it was not reversible because we see no "reasonable possibility that the jury could have been misled by the failure to give the instruction." Tilley v. Broward Hospital District, 458 So.2d 817, 818 (Fla. 4th DCA 1984), quoting from Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So.2d 153, 154 (Fla. 2d DCA 1975).

1989In Tilley v. Broward Hospital District, 458 So.2d 817 (Fla. 4th DCA 1984), a medical malpractice action for the death of plaintiffs infant son, the baby had numerous medical problems shortly after a premature birth, and surgery was performed on two occasions.

1987Thus, while the failure to give a concurring cause instruction may have been error, it was not reversible because we see no "reasonable possibility that the jury could have been misled by the failure to give the instruction." Tilley v. Broward Hospital District, 458 So.2d 817, 818 (Fla. 4th DCA 1984), quoting from Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So.2d 153, 154 (Fla. 2d DCA 1975).

2003Co., 700 So.2d 451, 453 (Fla. 4th DCA 1997) ("The purpose of the concurring cause instruction is to inform the jury that the defendant is not excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.") (citation omitted).

2002Co., 700 So.2d 451, 453 (Fla. 4th DCA 1997) ("The purpose of the concurring cause instruction is to inform the jury that the defendant *931 is not excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.") (citation omitted).

2007In Little v. Miller, 311 So.2d 116 (Fla. 4th DCA 1975), the Fourth District held that the trial court erred when it denied the appellant’s request to give a concurrent cause instruction, reasoning that the facts were in dispute, and depending on which set of facts the jury believed, any one of three drivers, or some combination thereof, could have been negligent and liable for the resulting car accident.

1997Little v. Miller, 311 So.2d 116 (Fla. 4th DCA 1975).

2008Without the concurring cause instruction, "the jury could have been under the erroneous impression that the required permanent injury had to result solely from the accident." Dutcher, 655 So.2d at 1219 .

2003Co., 655 So.2d 1217 (Fla. 4th DCA 1995); Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992), review denied, 620 So.2d 761 (Fla.1993). 782 So.2d at 898-99 . [4] Thomason supports the giving of a concurring cause instruction in this case.

2005See, e.g., Esancy v. Hodges, 727 So.2d 308, 309 (Fla. 2d DCA 1999) (holding that such an instruction is generally required); Auster v. Gertrude & Philip Strax Breast Cancer Detection Inst., Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995) (same); Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992) (same); but see Thomason v. Gordon, 782 So.2d 896, 900-02 (Fla. 5th DCA 2001) (Harris, J., dissenting) (concluding that, in such circumstances, a concurring cause instruction is generally not appropriate because a defendant is responsible only for damage resulting from the aggravation of the preex

2002The requested instruction accurately tracks the language of Florida Standard Jury Instruction 5.1(b). [4] Thomason v. Gordon, 782 So.2d 896, 898 (Fla. 5th DCA 2001) ("Several courts have recognized that where a defendant's negligence acts in combination with a plaintiff's physical condition to produce an injury, the concurring cause instruction of 5.1(b) is mandated.") (citing Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999)); Cruz, 778 So.2d at 460 (citing Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984); Goodman v. Becker, 430 So.2

2002The requested instruction accurately tracks the language of Florida Standard Jury Instruction 5.1(b). [4] Thomason v. Gordon, 782 So.2d 896, 898 (Fla. 5th DCA 2001) ("Several courts have recognized that where a defendant's negligence acts in combination with a plaintiff's physical condition to produce an injury, the concurring cause instruction of 5.1(b) is mandated.") (citing Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999)); Cruz, 778 So.2d at 460 (citing Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984); Goodman v. Becker, 430 So.2

1989In Goodman v. Becker, 430 So.2d 560 (Fla. 3d DCA 1983), the trial court denied a concurring cause instruction in a medical malpractice case in which the plaintiff Goodman “had suffered a severe stroke after an operation conducted under general anesthesia” by the defendant Becker, an oral surgeon.

2005See, e.g., Esancy v. Hodges, 727 So.2d 308, 309 (Fla. 2d DCA 1999) (holding that such an instruction is generally required); Auster v. Gertrude & Philip Strax Breast Cancer Detection Inst., Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995) (same); Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992) (same); but see Thomason v. Gordon, 782 So.2d 896, 900-02 (Fla. 5th DCA 2001) (Harris, J., dissenting) (concluding that, in such circumstances, a concurring cause instruction is generally not appropriate because a defendant is responsible only for damage resulting from the aggravation of the preex

2003The Stern court cited the decision in Thomason v. Gordon, 782 So.2d 896 (Fla. 5th DCA 2001), wherein this court ordered a new trial finding the trial court erred in failing to give a concurring cause instruction.

2002The requested instruction accurately tracks the language of Florida Standard Jury Instruction 5.1(b). [4] Thomason v. Gordon, 782 So.2d 896, 898 (Fla. 5th DCA 2001) ("Several courts have recognized that where a defendant's negligence acts in combination with a plaintiff's physical condition to produce an injury, the concurring cause instruction of 5.1(b) is mandated.") (citing Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999)); Cruz, 778 So.2d at 460 (citing Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984); Goodman v. Becker, 430 So.2

1989In Miller v. Court, 510 So.2d 926 (Fla. 4th DCA 1987), once again the court reversed for failure to give a concurring cause instruction in a medical malpractice action, holding: The standard jury instruction 5.1(b) on concurrent causes is applicable when the' plaintiffs injury is caused by a doctor’s negligence, acting upon and combined with the plaintiff’s pre-existing physical condition. [Citations omitted.] In the instant case, there was evidence presented that Dr. Court’s alleged negligence combined with Mrs. Miller’s pre-existing diabetic condition causing her coma.

2002The requested instruction accurately tracks the language of Florida Standard Jury Instruction 5.1(b). [4] Thomason v. Gordon, 782 So.2d 896, 898 (Fla. 5th DCA 2001) ("Several courts have recognized that where a defendant's negligence acts in combination with a plaintiff's physical condition to produce an injury, the concurring cause instruction of 5.1(b) is mandated.") (citing Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999)); Cruz, 778 So.2d at 460 (citing Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984); Goodman v. Becker, 430 So.2

1999See Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992), Auster v. Gertrude and Philip Strax Breast Cancer Detection Institute, Inc., 649 So.2d 883 (Fla. 4th DCA 1995); Zigman v. Cline, 664 So.2d 968 (Fla. 4th DCA 1995).

1999Parker v. Hoppock, 695 So.2d 424, 430 (Fla.4th DCA 1997), rev. denied, 707 So.2d 1126 (Fla.1998); Wedden v. Wentz, 571 So.2d 24 (Fla. 2nd DCA 1990), rev. denied, 576 So.2d 294 (Fla.1991).

1997See Wedden v. Wentz, 571 So.2d 24, 24 (Fla. 2d DCA 1990), review *431 denied, 576 So.2d 294 (Fla.1991); see also Little v. Miller, 311 So.2d 116 (Fla. 4th DCA 1975).

2013Philip Morris USA v. Douglas, 83 So.3d 1002, 1005-06 (Fla. 2d DCA 2012), disapproved in part on other grounds, 110 So.3d 419 (Fla.2013) (rejecting tobacco company defendants’ argument that the trial court erred in giving a concurring cause instruction in relation to the question of class membership); Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 480 (Fla. 1st DCA 2012) (rejecting without comment the tobacco companies’ argument that the court erred in providing the jury with a concurrent cause instruction).

2013Philip Morris USA v. Douglas, 83 So.3d 1002, 1005-06 (Fla. 2d DCA 2012), disapproved in part on other grounds, 110 So.3d 419 (Fla.2013) (rejecting tobacco company defendants’ argument that the trial court erred in giving a concurring cause instruction in relation to the question of class membership); Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 480 (Fla. 1st DCA 2012) (rejecting without comment the tobacco companies’ argument that the court erred in providing the jury with a concurrent cause instruction).

2013See La Petite Acad. v. Kamerzel, 751 So.2d 641, 642-43 (Fla. 5th DCA 1999) (holding that plaintiff was not entitled to a new trial based on the fact that the trial court refused to provide a concurring cause instruction where no other extraneous cause other than plaintiffs own negligence was established).

2013Philip Morris USA v. Douglas, 83 So.3d 1002, 1005-06 (Fla. 2d DCA 2012), disapproved in part on other grounds, 110 So.3d 419 (Fla.2013) (rejecting tobacco company defendants’ argument that the trial court erred in giving a concurring cause instruction in relation to the question of class membership); Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 480 (Fla. 1st DCA 2012) (rejecting without comment the tobacco companies’ argument that the court erred in providing the jury with a concurrent cause instruction).

2013Philip Morris USA v. Douglas, 83 So.3d 1002, 1005-06 (Fla. 2d DCA 2012), disapproved in part on other grounds, 110 So.3d 419 (Fla.2013) (rejecting tobacco company defendants’ argument that the trial court erred in giving a concurring cause instruction in relation to the question of class membership); Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 480 (Fla. 1st DCA 2012) (rejecting without comment the tobacco companies’ argument that the court erred in providing the jury with a concurrent cause instruction).

2007When a plaintiff requests a concurring cause instruction, the court commits reversible error if “[f]irst, the facts as viewed most favorably to the plaintiff support the need for such an instruction, and second, the failure to give the instruction may mislead the jury.” Roby v. Kingsley, 492 So.2d 789 , 791 (Fla. 1st DCA 1986).

2007“The purpose of the concurring cause instruction is to negate the idea that a defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.” Id. at 791.

2003However, even Judge Harris observed that the instruction is appropriate "when there are consecutive accidents leading to an injury which cannot be apportioned...." 782 So.2d at 900 . [5] A jury verdict is contrary to the manifest weight of the evidence only when the evidence is "clear, obvious, and indisputable." Perenic v. Castelli, 353 So.2d 1190, 1192 (Fla. 4th DCA 1977).

2002The requested instruction accurately tracks the language of Florida Standard Jury Instruction 5.1(b). [4] Thomason v. Gordon, 782 So.2d 896, 898 (Fla. 5th DCA 2001) ("Several courts have recognized that where a defendant's negligence acts in combination with a plaintiff's physical condition to produce an injury, the concurring cause instruction of 5.1(b) is mandated.") (citing Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999)); Cruz, 778 So.2d at 460 (citing Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984); Goodman v. Becker, 430 So.2

1999Parker v. Hoppock, 695 So.2d 424, 430 (Fla.4th DCA 1997), rev. denied, 707 So.2d 1126 (Fla.1998); Wedden v. Wentz, 571 So.2d 24 (Fla. 2nd DCA 1990), rev. denied, 576 So.2d 294 (Fla.1991).