Opinion
Case Nos. 4D01-2392, 4D01-2751 and 4D01-4346.
Opinion filed October 22, 2003.
Consolidated appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward H. Fine, Judge; L.T. Case No. 98-001615 AI.
Rosemary B. Wilder of Marlow, Connell, Valerius, Abrams, Adler Newman, Miami, for appellant.
Edna L. Caruso and Barbara J. Compiani of Caruso, Burlington, Bohn Compiani, P.A., West Palm Beach, Justus W. Reid of Reid, Metzger Bernhardt, P.A., West Palm Beach, and Gregg I. Shavitz of Shavitz Law Group, P.A., Boca Raton, for appellees.
The parents of Carlos E. Silva sued Club Boca individually and as legal guardians of their son to recover damages for severe brain injuries sustained by Carlos in a promotional boxing match held at the nightclub. The jury awarded Carlos $12,045,000 and his father and mother $50,000 and $250,000 respectively for loss of filial consortium. We affirm the final judgment for Carlos Silva, but reverse the derivative award to his parents based on Cruz v. Broward County Sch. Bd., 800 So.2d 213, 217 (Fla. 2001).
On cross-appeal, the Silvas argue that Club Boca was not entitled to any set-off for settlements with prior co-defendants, as they were not pled as Fabre non-parties, placed on the verdict form, nor determined by the jury to be liable. We agree and reverse the post-trial setoff order on the authority of Gouty v. Schnepel, 795 So.2d 959 (Fla. 2001).
On November 3, 1997, Carlos Silva, then a nineteen-year-old college student, went to Club Boca to box in the club's Monday Night Boxing promotional event. Before the fight, Carlos signed a "Release, Assumption of the Risk and Indemnification Agreement." Carlos was to fight Charlie Mejia, a friend and former wrestling teammate. Mejia had boxed once before at the club, but Carlos had never been in a boxing match prior to this event.
Although the testimony at trial was not clear, some witnesses thought that within seconds into the first round Carlos got hit and fell through the ropes, hitting his head on a wooden stage located next to the ring. During the second round, Carlos received several blows to his head. The referee allowed the fight to continue. Club Boca did not have a ringside physician available for the boxing match.
At the end of the third round, Carlos just sat in his corner with his head down. The referee asked one his friends to remove him so they could start the next fight. Finally, the referee had to help remove Carlos. Carlos sat in a chair and kept leaning his head forward. Within a few minutes, he was unresponsive although conscious. Then his head was completely down; he was unconscious, making snoring noises. His friends began requesting help. One friend ran to a bouncer and requested a paramedic. The bouncer finally came over and "yoked" Carlos up under the arms, dragging him outside. The bouncer thought that Carlos was drunk, even though one friend was screaming that Carlos was not drunk and should not be handled that way. Eventually someone called for medical assistance. Approximately forty-five minutes passed from the time that Carlos left the ring until he received emergency medical assistance.
According to the plaintiffs' expert medical testimony, Carlos sustained a subdural hematoma due to blows in the fight and/or hitting his head on the wooden stage and severe brain edema due to lack of oxygen. The experts testified that, although the subdural hematoma was significant, the severe brain edema was a result of the forty to forty-five minute delay in summoning medical attention. The lack of medical attention allowed the hematoma to get much larger and caused extremely high pressure to build up within Carlos' cranial cavity. Carlos' brain was so swollen that the neurosurgeon was forced to remove a part of the brain that controlled speech and motor functions on his right side. As a result, Carlos cannot speak or walk and remains in a partial vegetative state.
In their negligence count, the plaintiffs alleged that Club Boca was negligent in: (a) constructing the boxing ring adjacent to the fixed wooden stage in such a configuration as to be unreasonably dangerous to participants; (b) failing to provide a licensed physician and/or medical personnel to monitor the fight and the welfare of the participants; (c) continuing the fight following Carlos' acceleration from the ring; (d) failing to monitor the health and welfare of Carlos prior to, during, and following the fight;(e) failing to place some form of mat or protection upon the adjacent fixed wooden stage; (f) failing to timely summon an ambulance; (g) negligently handling the impaired Carlos following the fight; (h) failing to have the referee monitor the health and welfare of Carlos; (I) permitting the announcer, promoter and/or referee to incite the participants to continue fighting; (j) failing to warn the boxers of the lack of medical attention; (k) failing to make certain that the participants could not come in contact with the adjacent stage; (l) failing to warn the boxers that the adjacent stage was within such close proximity and was dangerous; and (m) failing to appropriately regulate the level and skill of the boxers they paired to fight. Club Boca asserted as affirmative defenses that the release and waiver signed by Carlos barred the action, that Carlos assumed the risks inherent in the boxing match, and that Carlos was comparatively negligent.
Release and waiver
In a motion for summary judgment, Club Boca asserted that the release and waiver signed by Carlos completely barred this action. The document entitled "Release, Assumption of Risk and Indemnification Agreement" stated in pertinent part:
In consideration of my participation in the above entitled event, and with the understanding that my participation in Monday Night Boxing is only on the condition that I enter into this agreement for myself, my heirs and assigns, I hereby assume the inherent and extraordinary risks involved in Monday Night Boxing and any risks inherent in any other activities connected with this event in which I may voluntarily participate.
We conclude that the trial court properly denied Club Boca's motion for summary judgment. The court determined that the release did not bar the plaintiff's lawsuit, because under the agreement the plaintiff only assumed the inherent risks in the boxing match, and thus, released liability only for injuries resulting from his voluntary participation in the boxing match. Further, the court ruled that the release did not clearly and unequivocally release Club Boca from liability for injures to the plaintiff as a result of its own negligence.
We agree that, based on the language of the release, any negligence on the part of Club Boca fell outside the scope of the release. Thus, while Carlos may have been precluded from recovering for injuries resulting from any dangers inherent in boxing, he was not barred from recovering for injuries resulting from Club Boca's negligence. See Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984); O'Connell v. Walt Disney World Co., 413 So.2d 444, 447 (Fla. 5th DCA 1982). The trial court therefore properly denied Club Boca's motions for summary judgment, directed verdict, and a new trial on liability.
In determining that Carlos' damages were mostly caused by Club Boca's negligence, rather than by any inherent risks in boxing, the jury specifically found that Club Boca was negligent in: (1) failing to provide or obtain medical treatment for Carlos; (2) failing to maintain its premises in a reasonably safe condition; and (3) failing to properly supervise the Monday Night Boxing event. The jury attributed 85% negligence to Club Boca and 15% to Carlos. It awarded $912,000.00 for past medical expenses; $8,500,000.00 for future medical expenses; $1,633,000.00 for future loss of earning ability; $100,000.00 for past pain and suffering and loss of enjoyment of life; and $900,000 for future pain and suffering and loss of enjoyment of life. The total award for Carlos Silva was $12,045,000.00. Carlos' mother was awarded $250,000 and his father $50,000 for loss of filial consortium. The trial court entered a final judgment on the verdict, reducing it for Carlos' 15% comparative negligence.
The jury found no negligence on the part of the boxing promoter or Mejia.
Loss of filial consortium
Club Boca argues that the trial court erred as a matter of law in allowing Carlos' parents to recover for loss of filial consortium. The plaintiffs properly concede that under Cruz, damages of parents for loss of filial consortium are limited to the period of a child's minority. 800 So.2d at 217. Because Carlos had already reached the age of majority at the time he was injured, we reverse the award to Carlos' parents.
Setoff for settlements
Post-trial, Club Boca moved for a setoff of the plaintiffs' pre-trial settlement with prior defendants (premises owners and lessors) against the jury award. The court allowed the setoff, but only against economic damages, pursuant to Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla. 1995). Club Boca appealed, contending that the setoff should have included non-economic damages. The plaintiffs cross-appealed, arguing that, under Gouty v. Schnepel, 795 So.2d 959 (Fla. 2201), there should have been no setoff whatsoever, because the settling defendants did not appear on the verdict and the jury did not apportion liability as to them.
Because Gouty was decided during the pendency of this appeal, the trial judge did not have the benefit of that decision when he granted Club Boca's motion for setoff.
Non-economic damages
First, we conclude that the trial court properly determined that no setoff should be made from non-economic damages. In Wells, the supreme court reviewed the apportionment of damages statutes, section 768.81(3), Florida Statutes, and Florida's setoff statutes, sections 46.015, 768.041, and 768.31. Recognizing that under section 768.81(3), each defendant is solely, not jointly, responsible for his or her share of non-economic damages, and that the setoff statutes presuppose the existence of multiple defendants jointly liable for the same damages, the court concluded that setoff statutes do not apply to non-economic damages. 659 So.2d at 253.
Economic damages
However, we agree with plaintiffs/cross-appellants that the court erred in allowing a set-off as to economic damages. See Scrima v. Hutchins, 849 So.2d 384 (Fla. 4th DCA 2003) (citing D'Angelo v. Fitzmaurice, 832 So.2d 135 (Fla. 2d DCA 2002), rev. granted, 845 So.2d 888 (Fla. May 15, 2003) (construing Gouty to mean that failure to place the co-defendant's fault before the jury negates any entitlement to a set-off)).
In Gouty, the plaintiff sued the owner of a gun and the gun manufacturer after being injured by a bullet from the gun. Prior to trial, the manufacturer settled for $137,500, but was listed on the verdict for purposes of apportioning fault. The jury determined that the owner of the gun was 100% liable and exonerated the manufacturer. It awarded $250,000; $125,000 of that amount included economic damages. The judge denied a post-trial motion to reduce the verdict by the manufacturer's settlement amount. The supreme court held that the setoff statutes do not apply to a settling defendant who is found to have no liability. "Where a defendant is found 100% liable for the plaintiff's damages, the settling defendant who is not found liable cannot be considered a joint tortfeasor." 795 So.2d at 965. Concluding that setoff statutes apply where the liability continues to be joint and several, the court stated:
We conclude, following our reasoning in Wells, that the applicability of the setoff statutes is predicated on the existence of other tortfeasors who are liable for the same injury as the settling party. . . .
In this case, [the owner] was found 100% liable for Gouty's injuries and the jury expressly rejected a finding that [the manufacturer] was a joint tortfeasor. The judgment against [the owner] for both economic and noneconomic damages was not based upon joint and several liability, but on [the owner's] percentage of fault, which in this case was found to be 100%.
Id. at 965-66.
In D'Angelo, the plaintiff instituted a medical malpractice action against both the hospital and the doctor. Prior to trial, the hospital and the plaintiff settled, and the case proceeded against the doctor. The jury determined that 100% of the plaintiff's damages were attributable to the doctor. Neither party requested that the hospital be placed on the verdict form.
The doctor requested that the trial court setoff the verdict with the settlement from the hospital. Citing Gouty, the plaintiff argued that the doctor was not entitled to a setoff. The second district wrote:
The elimination of joint and several liability, combined with Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), has made set-off the litigation du jour for personal injury practitioners. This case poses a new and unique problem. The argument seems to depend on our interpretation of the following language from Gouty: "if the settling defendant is not found liable." 795 So.2d at 960 (emphasis added). Does this mean that a failure to establish liability will obviate set-off or that there must be a finding of no liability to preclude recovery?
The question is further confused by the interchange of "not found liable" and "found not liable" in the Gouty opinion. Because the language of the specific question certified and answered was "not found liable," we conclude this is the rule we should consider in deciding this case. Dr. D'Angelo contends there was no specific jury finding on the hospital's liability and therefore he is entitled to a set-off for the entire amount of the hospital settlement. The [plaintiffs], of course, assert that because the question of the hospital's fault was not placed before the jury, the hospital was not found liable and thus there should be no set-off.
832 So.2d at 137.
Concluding that the language in Gouty supported the plaintiffs' position, the court determined that the doctor was not entitled to a setoff. It reasoned that because there was no opportunity for the jury to find the hospital liable, the hospital was found not liable. The court further explained its holding:
This conclusion is bolstered by legal principles related to settlements. A settlement, in and of itself, does not establish fault. Obviously, settlements are made for reasons other than the admission of liability. The legal system, and indeed our society, encourages settlement to resolve conflict. Allowing a full set-off without a finding that the settling party was at fault allows the nonsettling party to roll the dice at trial with the assurance it will have any verdict reduced without a showing of fault on the part of the settling defendant.
832 So.2d at 137.
Here, the defendants who settled were similarly not placed on the verdict form; the jury thus had no opportunity to apportion liability as to them. Instead, the jury found that Club Boca and Carlos were 100 % liable for Carlos' damages. Because the settling defendants could not be considered joint tortfeasors with Club Boca, under Gouty, the trial court erred in granting Club Boca's motion for a setoff. Accordingly, we reverse the order granting the set-off of plaintiffs' settlement from economic damages. We certify as a question of great public importance essentially the same question certified in D'Angelo:
IS IT APPROPRIATE TO SET-OFF AGAINST THE DAMAGES PORTION OF AN AWARD AGAINST ONE TORTFEASOR IN A TORT ACTION THE AMOUNT RECOVERED FROM SETTLEMENT FROM ANOTHER FOR THE SAME INCIDENT CAUSING THE INJURY WHERE THE SETTLING ALLEGED TORTFEASOR WAS NOT INCLUDED ON THE VERDICT FORM?
In sum, for the reasons stated above, we affirm the final judgment for Carlos Silva; reverse the consortium award to Carlos' parents; affirm the order disallowing setoff of plaintiffs' settlement from non-economic damages; and reverse the order granting the setoff from economic damages and the corrected final judgment entered thereon.
AFFIRMED in part; REVERSED in part and REMANDED.
KLEIN and SHAHOOD, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.