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Dade County

The plaintiff, a 27-year-old male resident of Columbia at the time of injury, brought this action under Florida’s Dangerous Instrumentality Act, against the defendant Hertz Corporation. The plaintiff claimed that the defendant was responsible for the negligence of the driver of the defendant’s rental car when the car struck a tree. The plaintiff was a back seat passenger in the car at the time and claimed that he was wearing his seatbelt at the time of impact. The defendant admitted that the driver of its car was negligent. However, the defendant argued that the plaintiff was not wearing his seatbelt and was comparatively negligent for not doing so.

The plaintiff, an employee of Carnival Cruise Line at the time, was traveling from Port Carnival to Miami with three co-workers to attend a job-related seminar. The plaintiff was traveling in a vehicle which had been rented from the defendant, Hertz. It was unknown what caused the vehicle to leave the road surface and strike a tree. However, there was testimony that the non-party driver of the car may have been eating a hamburger with one hand while driving at a speed of 80 mph. The accident occurred on route 95 at approximately noon on a clear day. Testimony indicated that the driver switched lanes to pass another vehicle, returned to the right lane, the car fishtailed, swerved off the road and struck a tree.

The plaintiff’s medical experts testified that the plaintiff suffered fractures of the cervical vertebra at the C2, C3 and C4 levels. The plaintiff underwent two cervical surgeries including insertion of two titanium orthopedic plates and a fusion. The plaintiff’s neurosurgeon testified that although the plaintiff is neurologically in fact, he has suffered a permanent disability and will experience a limited range of motion as a result of the fusion surgery.

The plaintiff also called an orthopedic surgeon who had been retained by the defendant. This expert testified that the plaintiff could not return to his former position as a cruise ship steward because it was too risky for him to go to sea. This expert also opined that the plaintiff suffers an increased risk of arthritis and may require another surgery in his lifetime. The plaintiff’s rehabilitation expert testified that the plaintiff will not be capable of earning a future salary equal to his pre- accident earnings. The plaintiff’s economist estimated the plaintiff’s past and future wage loss as $________. The plaintiff remained unemployed from the date of the accident until the date of trial.

The plaintiff testified that he specifically remembered wearing his seatbelt at the time of the accident. The plaintiff’s biomechanic/accident reconstruction expert testified that the vehicle struck a tree sideways and rotated ________ degrees off the tree. The plaintiff’s biomechanic/accident reconstruction expert p 7 3 testified that the spin of the vehicle caused the plaintiff’s body to move in such a manner as to avoid loading (or pulling) the seatbelt. The plaintiff’s experts contended that the plaintiff’s injury was a flexion injury caused by force exerted to the back of the plaintiff’s head, causing his chin to move forward to his chest. The plaintiff pointed to damage to the plastic trim around the back windshield which experts opined was caused from the inside out. The plaintiff contended that this was the location where the back of the plaintiff’s head had impacted.

The plaintiff’s experts argued that, even if the plaintiff were not wearing a seatbelt, the seatbelt would not have prevented his cervical fractures.

The defendant’s seatbelt/accident reconstruction expert testified that the plaintiff’s forehead struck the seat in front of him and that such trauma would have been prevented by use of a seatbelt.

The defendant also argued that examination of the seatbelt in the location where the plaintiff was sitting, revealed that there was no loading mark (or indication of pull) on the belt. The defendant’s biomechanical expert testified that the lack of physical evidence involving the seatbelt established that it was not being worn by the plaintiff at the time of impact.

The jury found the defendant ________% negligent and awarded the plaintiff $________. The award included $________ in past and future wage loss; $________ in past medical expense; $________ in future medical expenses and $________ in past and future pain and suffering.

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