author: PER CURIAM. PER CURIAM.

text:
    Gary RUTLEDGE, et al., Appellants, v. Herbert W. CHANDLER, et al., Appellees.
    No. 64460.
    Supreme Court of Florida.
    Order Dec. 6, 1983.
    Opinion Feb. 16, 1984.
    Rehearing Denied March 22, 1984.
    Harold F.X. Purnell, General Counsel, Dept, of Business Regulation, Tallahassee, for appellants.
    Thomas F. Woods of Woods & Carlson, Tallahassee, for appellees.
    Mark Herron, Laurel D. Landry and Sandra M. Anderson, Tallahassee, for The Florida House of Representatives, Representative H. Lee Moffitt and Representative Barry Kutun, amicus curiae.
    Arnold D. Levine and George H. Sheldon of Levine, Freedman, Hirsch & Levinson, Tampa, for The Florida Restaurant Ass’n, Inc., amicus curiae.
    Wilbur E. Brewton of Taylor, Brion, Buker & Greene, Tallahassee, for The Wine Industry of Florida, Inc., amicus curiae.
   PER CURIAM.

This appeal is before the Court pursuant to the certification of the District Court of Appeal, First District, that the amended order of the trial court declaring Section 17, Chapter 83-349, Laws of Florida, unconstitutional was of great public importance throughout the state and required immediate resolution by this Court.

We accepted jurisdiction, and after hearing oral argument, we hold that the statute is constitutional. The order of the trial court is reversed, and the permanent injunction against the appellants is hereby vacated effective immediately.

An opinion explaining our rationale will be filed at a later date.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.

McDONALD, J., dissents.

PER CURIAM.

This case is an appeal from a final order of a trial court, certified by the First District Court of Appeal as requiring immediate resolution by this Court. We have jurisdiction pursuant to article V, section 3(b)(5) of the Florida Constitution.

During its July 1983 special session, the legislature increased state alcoholic beverage taxes. Ch. 83-349, Laws of Fla. The higher tax rates took effect September 1, 1983, to be paid by Florida alcoholic beverage distributors on sale of such products to licensed Florida retailers. The tax rate was based on gallonage and type of beverage. Section 17 of chapter 83-349 levied a “floor tax” on Florida retailers, taxing all alcoholic beverages in retail inventory on the September 1 effective date to ensure that all alcoholic beverages sold by retailers after the effective date bore the same tax rate. The section 17 tax mirrored the rest of the chapter regarding tax rate, gal-lonage, and type of beverage and was designed to prevent avoidance of the tax by stockpiling before September 1, and also to prevent a potential windfall for any retailer who might sell pre-September inventory at post-September prices.

On August 12, 1983, the appellees filed a complaint in circuit court in Leon County, challenging the constitutionality of section 17 on the ground that the state was imposing an ad valorem tax in violation of article VII, section 1(a) of the Florida Constitution. The circuit judge issued a temporary injunction enjoining the Division of Alcoholic Beverages and Tobacco (Division) from collecting the section 17 tax. The order also required liquor retailers to file the required inventory report but enjoined payment of the tax. The Division filed an interlocutory appeal in the First District Court of Appeal, effectively staying the circuit court order, but the circuit court vacated the stay on September 1.

The circuit court entered an amended final order and permanent injunction September 22 holding the section 17 tax to be an unconstitutional ad valorem tax. The appellants sought immediate supreme court review by certification because the Division was unable to deposit 13,700 checks, total-ling $1.3 million, submitted by Florida retailers despite the injunctive relief, and because, should section 17 be found valid, the Division needed to act quickly to collect the tax from the approximately 350 Florida retailers who go out of business each month. After oral argument on December 6, 1983, the Court issued an order holding the statute constitutional, reversing the trial court order and vacating the permanent injunction immediately. Rutledge v. Chandler, 445 So.2d 1007 (FIa.1983). We stated then that this opinion would follow.

This Court has delineated the difference between ad valorem and excise taxes in City of DeLand v. Florida Public Service Commission, 119 Fla. 804, 813, 161 So. 735, 738 (1935):

All taxes, other than polls, are either direct or indirect property taxes. A direct tax is one that is imposed directly upon property, according to its value. It is generally spoken of as a property tax or an ad valorem tax. An indirect tax is a tax upon some right or privilege, or corporate franchise, and is most often called an excise or occupational tax.
An excise and a property tax, when the two approach each other, ordinarily may be distinguished by the respective methods adopted for laying them and fixing their amounts. If a tax is imposed directly by the Legislature without assessment, and its sum is measured by the amount of business done, income previously received, or by the extent to which a taxable privilege may have been enjoyed or exercised by the taxpayer, irrespective of the nature or value of such taxpayer’s assets or his investments in business, it is to be regarded as an excise tax. But if the tax is computed upon the valuation of the property, and assessed by assessors, either where it is situated or at the owner's domicile, although privileges may be included in the valuation, it is considered a property tax.

The legislature defines an ad valorem tax as “a tax based upon the assessed value of property.” § 192.001(1), Fla.Stat. (1981).

Under City of DeLand and section 192.-001(1), section 17’s floor tax is not a property tax because it is not levied on value assessed by assessors. Section 17 also affirmatively satisfies the criteria for an excise tax. It is imposed directly by the legislature, without assessment, and is based on the exercise of a privilege: the possession of alcoholic beverage for retail sale. The exercise of this privilege is measured by the amount of alcoholic beverages in inventory on September 1, 1983. In the past, this Court has found a tax on a privilege, measured by inventory, to be an excise tax. Smith v. City of Miami, 160 Fla. 306, 34 So.2d 544 (1948) (tax on tobacco, measured by quantity handled, is an excise tax); Jerome H. Sheip Co. v. Amos, 100 Fla. 863, 130 So. 699 (1930) (tax on privilege to store gasoline, measured by amount stored, is an excise tax).

While the specific issue now before us may be a case of first impression in Florida, courts in other jurisdictions have found floor taxes legally indistinguishable from the one at issue here to be an excise tax. See, e.g., Herman v. Mayor of Baltimore, 189 Md. 191, 55 A.2d 491 (1947) (taxing scheme functionally identical to instant situation held not to be ad valorem tax on retailers); Barnes v. Stout, 65 S.D. 592, 276 N.W. 920 (1937) (tax law requiring that all liquor held for ultimate sale to consumers on a certain date bear an extra stamp reflecting increased excise tax held to be an excise tax).

The United States Supreme Court examined the nature of an excise tax in Patton v. Brady, 184 U.S. 608, 22 S.Ct. 493, 46 L.Ed. 713 (1902). In that case, Congress had increased the tobacco tax from six to twelve cents per pound and provided for a floor tax of six cents on inventory already bearing the original six cent tax. The court found excise taxes were indirect taxes on consumers “imposed in different forms at some time intermediate the beginning of manufacture or production and the act of consumption.” 184 U.S. at 617, 22 S.Ct. at 496. The Patton Court held the floor tax in that case was an excise tax.

An excise tax on a consumer item is thus an indirect tax levied somewhere in the chain of manufacture and distribution. In the case before us, the legislature acted to raise this indirect tax on consumers. In implementing the tax increase, the legislature provided for the future imposition of the tax in sections 12 to 16 of chapter 83-349, through the existing method of taxing alcoholic beverages at the time they are sold by a distributor to a retailer. Recognizing that some of the beverages intended to bear the added tax would have already passed the distributor-retailer taxation nexus, thé legislature provided in section 17 for the taxation of such alcoholic beverages not yet in the hands of consumers. The legislature merely imposed an excise tax on all alcoholic beverages “intermediate the beginning of manufacture or production and the act of consumption” and reached two different points in that intermediate chain of distribution to ensure that all alcoholic beverage sales to consumers on and after September 1,1983, bore the increased indirect tax on consumers.

Chandler urges that because inventory is subject to ad valorem taxation pursuant to section 192.001 of the Florida Statutes, any tax on inventory is an ad valorem tax. However, the tax at issue here is not on inventory, but on a privilege as measured by inventory. Retailers had been paying the older, lower excise tax indirectly in the price they paid to distributors, which reflected the tax the distributor had to pay the state upon sale to retailers. Retailers are already paying the increased tax indirectly in the price paid to distributors, and they will continue to do so. The section 17 tax merely reaches the alcoholic beverages which otherwise would have escaped the increased tax.

Appellees raise four other issues: 1. The act on its face imposes no penalties for failure to comply; 2. The tax is an unconstitutional ex post facto law; 3. The tax is an unconstitutional retroactive law; and 4. The act imposes an impermissibly excessive burden of double taxation. We find no merit to any of these issues.

For the reasons stated in this opinion, we found section 17 of chapter 83-349 of the Laws of Florida to be constitutional when we issued our December 6 order. Therefore, the trial court order was reversed and the permanent injunction vacated.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON, McDonald, EHRLICH and SHAW, JJ., concur.

      . Section 17. On the effective date of this section, before opening for business, each vendor in this state shall take an inventory of those alcoholic beverages in inventory upon which the increase in tax imposed by this act has not been paid and shall certify the amount of such inventory to the Division of Alcoholic Beverages and Tobacco on or before September 10, 1983, accompanied by a check or money order for the amount of increased tax. The provisions of chapters 563, 564, and 565, Florida Statutes, relating to penalties and interest for delinquent payment, shall apply to the additional tax levied by this section.
      Ch. 83-349, § 17, Laws of Fla.

      . "No tax shall be levied except in pursuance of law. No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted to the state except as provided by general law.” Art. VII, § 1(a), Fla. Const.


source: Caselaw Access Project

author: BOYD, Justice. EHRLICH, Justice, ADKINS, Justice,

license: Public Domain

text:
    VARIETY CHILDREN’S HOSPITAL, Petitioner, v. Thomas PERKINS, as Personal Representative of the Estate of Anthony Perkins, Respondent.
    No. 62190.
    Supreme Court of Florida.
    Dec. 15, 1983.
    Rehearing Denied March 22, 1984.

      James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    Marcia E. Levine of Fazio, Dawson & Disalvo, Fort Lauderdale, for respondent.
    Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for Florida Defense Lawyers Association, amicus curiae.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Florida Farm Bureau Mut. Ins. Co., amicus curiae.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   BOYD, Justice.

We have for review a decision of a district court of appeal, Perkins v. Variety Children’s Hospital, 413 So.2d 760 (Fla. 3d DCA 1982), which passed upon a question certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Thomas Perkins, as personal representative of the estate of his son Anthony Perkins, brought an action to recover for his son’s wrongful death. The action was based on injuries which had already been the subject of a personal injury action in which the injured minor recovered damages for his injuries and the parents recovered for past and future medical expenses. The defendant raised the affirmative defenses that the cause of action had already been satisfied and that the statute of limitations had run, measured from the time of the original incident. The trial court entered summary judgment for the defendant.

The district court of appeal reversed on the ground that the right to recover for wrongful death is separate and independent from, rather than derivative of, the injured person’s right while living to recover for personal injuries. The court also held that the two-year statute of limitations for wrongful death begins to run at the time of death, not at the time of the original incident, and that the action was therefore timely filed. The court then certified the following question as one of great public importance:

Whether a judgment for personal injuries recovered during life-time of an injured person bars a subsequent wrongful death action by the personal representative of the deceased where death is a result of the same injuries.

413 So.2d at 766. We take the view contrary to that of the district court of appeal and hold that the judgment for personal injuries rendered in favor of the injured party while living barred the subsequent wrongful death action based on the same tortious conduct.

Our holding is based upon the language contained in section 768.19, Florida Statutes (1981), which provides:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.

The district court of appeal reasoned that this section, which is part of the Florida Wrongful Death Act, creates an independent cause of action in the statutory beneficiaries which cannot be barred by the decedent’s having obtained a prior judgment for personal injuries.

The district court’s decision is contrary to the prevalent view ascribed to by the courts of other jurisdictions that have similar statutes. “[T]he majority of the courts have held that a judgment for or against the decedent in an action for his injuries commenced during his lifetime, or the compromise and release of such an action, will operate as a bar to any subsequent suit founded upon his death.” W. Prosser, Law of Torts, § 127 (4th ed. 1971) (footnotes omitted).

The general rule is that, if the injured party sues and recovers damages for his fatal injuries during his lifetime, the cause of action is thereby satisfied and, in the absence of fraud, duress, inadvertence or mistake, no right of action for death remains for the benefit of the persons named in the wrongful death statute.
This rule is supported by the theory that a cause of action merges into the judgment and, once the judgment is rendered and final, no cause of action exists.
In some cases the rule has been based upon the ascertained legislative intention to provide a remedy where, under the common law, none existed, and not to make the wrongdoer pay twice for one wrong. In other instances, it is based upon an express statutory provision that the right of action for death exists only in cases where the injured party could himself maintain the action if he were living in conjunction with an interpretation of such provision as requiring, as a condition precedent, the right of decedent to maintain the action at the time of his death.

S. Speiser, Recovery for Wrongful Death, § 5:18 (1966) (footnotes omitted).

We find these reasons supporting the majority rule to be persuasive. At common law a person's right to sue for personal injuries terminated with his death. This created the anomaly that a tortfeasor who would normally be liable for damages caused by his tortious conduct would not be liable in situations where the damages were so severe as to result in death. This paradox was remedied by creating an independent cause of action for the decedent’s survivors. It is thus clear that the paramount purpose of the Florida Wrongful Death Act is to prevent a tortfeasor from evading liability for his misconduct when such misconduct results in death.

In this case the deceased had already obtained a judgment of $1,000,000 and his parents had recovered $200,000 from the defendant. Hence the defendant has already been held accountable for its tortious conduct. To allow the estate to relitigate the case to obtain an additional judgment would not further the paramount purpose of the Florida Wrongful Death Act. Instead it would create many additional problems involving “lack of repose, double recovery, discouragement of settlement, the interests of unborn heirs and res judicata." Alfone v. Sarno, 87 N.J. 99, 130, 432 A.2d 857, 873 (1981) (Clifford, J., dissenting). See also Note, Action for Wrongful Death Not Extinguished by Decedent’s Personal Injury Recovery, 12 Seton Hall L.Rev. 371 (1982).

At the moment of his death the injured minor Anthony Perkins had no right of action against the tortfeasor because his cause of action had already been litigated, proved and satisfied. The recovery awarded by the judgment in the previous personal injury action included damages arising from future expenses. Since there was no right of action existing at the time of death, under the statute no wrongful death cause of action survived the decedent. See Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934); Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894); Warren v. Cohen, 363 So.2d 129 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 462 (Fla.1979).

We therefore quash the decision of the district court of appeal and remand with instructions that the trial court’s judgment be affirmed.

It is so ordered.

ALDERMAN, C.J., and OVERTON and McDONALD, JJ., concur.

EHRLICH, J., concurs in result only with an opinion, with which OVERTON, J., concurs.

ADKINS, J., dissents with an opinion.

EHRLICH, Justice,

concurring.

I concur in the result reached by the majority. I write separately to reemphasize this Court’s continued adherence to its determination of the nature of wrongful death actions. As the district court correctly noted, “The Florida Supreme Court has consistently found that ... [the] Wrongful Death Act ... creates an independent cause of action in the statutory beneficiaries.” Perkins v. Variety Children’s Hospital, 413 So.2d at 761. This has been true throughout the history of the Act in Florida, despite the variety of revisions and reenactments it has undergone. See, e.g., Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975); Stokes v. Liberty Mutual Insurance Co., 213 So.2d 695 (Fla.1968); Moragne v. State Marine Lines, Inc., 211 So.2d 161 (Fla.1968); Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Eppes v. Railway Express Agency, 40 So.2d 131 (Fla.1949); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1945); Florida East Coast Ry. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); Florida Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (1899); Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894). The most recent comprehensive revision of the Wrongful Death Act, section 768 et seq., Florida Statutes (1973), merged any survival action for personal injuries with the wrongful death action by allowing survivors to recover for their own pain and suffering while abating the right of any recovery on the decedent’s behalf. See Martin v. United Securities Service, Inc.

The wrongful death action is not derivative, but it is remedial and should be construed to fulfill its remedial function. See, e.g., Klepper v. Breslin, 83 So.2d 587 (Fla.1955); Nolan v. Moore, 81 Fla. 594, 88 So. 601 (1920). It was designed to fill a void in the common law, not to aggregate with all the other causes of action already existing under the common law. See Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969). When an injured party brings suit, his measure of damages includes the loss of capacity for the enjoyment of life, loss of earning power, medical costs and pain and suffering over his projected lifetime. The legislature’s substitution of damages for survivors’ pain and suffering in place of decedent’s damages for pain and suffering clearly indicate the legislature’s policy of limiting potential liability of tortfeasors. By the same analysis, payment for damages to the injured party must surely end the defendant’s liability.

The matter is one of policy and of equity. Where an injured party has been legally “made whole” by the tortfeasor the event giving rise to the liability has been legally laid to rest. There is no social or legal need for the alternative remedy of a wrongful death action. Once the defendant has compensated his victim for his wrongdoing, he must be freed from the fear of future liability to another party arising from that same act against that same victim.

OVERTON, J., concurs.

ADKINS, Justice,

dissenting.

The question before the Court is one of statutory interpretation. Section 768.19, Florida Statutes, requires that the initial injury be one that “would have entitled the person injured to maintain an action and recover damages if death had not ensued.” This language is capable of two different interpretations. The majority of those jurisdictions with similar statutes has interpreted such language to require the decedent to have had at the time of death a viable cause of action against the tort-feasor for the injury which eventually resulted in death. See e.g., Mellon v. Goodyear, 277 U.S. 335, 344, 48 S.Ct. 541, 544, 72 L.Ed. 906 (1928); Harris v. Illinois Cent. R. Co., 111 Miss. 623, 71 So. 878 (1916). These jurisdictions have adopted the “derivative” approach to wrongful death actions, where the designated beneficiary’s ability to maintain a wrongful death action is dependent on the decedent’s ability to have maintained a personal injury action at the moment of death. A minority of jurisdictions, on the other hand, has interpreted the language to require only that the tortfeasor be at fault in the injury which eventually resulted in death, therefore fixing the liability of the tortfeasor at all times subsequent to the injury. E.g., Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (1981). This approach allows the beneficiaries to recover on a wrongful death claim if it is determined that the tortfeasor was at fault in the initial injury to the eventual decedent, and a wrongful death recovery is unaffected by any act of the eventual decedent subsequent to his injury. A majority of this Court has chosen to follow the “derivative” approach to wrongful death actions in their interpretation of the statute. A review of those decisions which have addressed the Florida wrongful death statutes and the purpose underlying those statutes shows that the majority interpretation is incorrect.

Both the majority and concurring opinions base their decisions to some degree on the notion that the tortfeasor has already made his victim whole or has been held accountable in the earlier personal injury suit. The opinions, however, have lost sight of the fact that the tortfeasor has caused distinct injuries to two separate parties. As emphasized in the concurring opinion, this Court has always held that the wrongful death statutes create an independent cause of action in the designated beneficiaries. This independent recognition is based on the realization that the tortfeasor inflicts an injury on the beneficiaries separate and apart from the injury inflicted on the decedent. E.g., Epps v. Railway Express Agency, Inc., 40 So.2d 131 (Fla.1949); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213, 220 (1945). This realization is exemplified by statutory provision, where damages recoverable by the beneficiaries are tailored solely to their losses and are unrelated to damages sustained by the decedent. § 768.21, Fla.Stat. (1981); See also Ake, 25 So.2d at 221. The fact that the 1972 revision to the Florida Wrongful Death Act abated any recovery on the decedent’s behalf through a survivor’s action in favor of recovery by the beneficiaries for pain and suffering through a wrongful death action is not indicative of a legislative intent to limit the tortfeasor’s liability. Rather, the revision was intended only to ensure that the living were compensated for their losses sustained as a result of the tortfeasor’s acts. See Florida Law Revision Commission, Report on Proposed Revision of Florida Wrongful Death and Survival Statutes, at 26, 47 (1969) (L. Powers, reporter). This emphasis on compensating the beneficiaries for their losses has led this Court to indicate in dictum that a wrongful death action is not derivative from any action which the decedent may have maintained had death not ensued. Stokes v. Liberty Mutual Insurance Co., 213 So.2d 695, 698 (Fla.1968). Clearly, this Court has consistently recognized the paramount purpose of a wrongful death action to be the compensation of the decedent’s beneficiaries for losses sustained from the death of the decedent.

The statutory interpretation adopted by the majority, however, causes the beneficiary's ability to recover compensation to be totally dependent upon the decedent’s rights at the time of death. In effect, recovery by one party, or inability to recover at the time of death for reasons personal to that party, for injuries caused by the tortfeasor’s act precludes recovery by a second party independently injured by the same act. This result is in direct conflict with the recognized purpose of the Florida wrongful death statutes. In order to ensure that the designated beneficiaries recover for their losses independently of any recovery by the decedent, the statute must be interpreted as being directed toward the initial fault of the tortfeasor in causing the injury, as opposed to the acts or abilities of the decedent subsequent to the injury.

An interpretation which emphasizes initial fault is entirely in accord with the past decisions of this Court which dealt with wrongful death actions brought while there existed procedural bars to the decedent’s personal injury recovery at the time of death. In Shiver v. Sessions, 80 So.2d 905 (Fla.1955), this Court upheld the right of the beneficiaries to bring a wrongful death action against the tortfeasor even though a decedent’s personal injury action against the tortfeasor would have been barred by the doctrine of interspousal immunity. In reaching the decision, the Court emphasized that it was the original act of negligence by the tortfeasor which gave rise to the wrongful death action, and that the wrongful death action was unaffected by any bar to a decedent’s personal injury action other than a bar due to a finding that the tortfeasor was without fault. 80 So.2d at 908. In Collins v. Hall, cited by the majority, this Court disallowed a wrongful death action where the decedent had previously been a party to a personal injury judgment concerning the injuries which eventually resulted in death. The Collins decision was not based, however, on the fact that the decedent did not have a viable cause of action at the time of death, but on the fact that the prior personal injury judgment had absolved the tort-feasor of liability for the initial injury. 157 So. at 647-48. Accord Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894); See also Epps, 40 So.2d at 133 (discussing the Collins decision).

It is clear from the majority and concurring opinions that there is a perceived fear of double liability/recovery if a wrongful death action is allowed to follow a personal injury recovery. That fear should disappear, however, upon the realization that a wrongful death judgment compensates certain parties for certain elements of damages, both of which are different from those compensated by a personal injury judgment. Elements of damages which are capable of being duplicated, such as the future earnings element in a personal injury judgment and the loss of monetary support element in a wrongful death judgment, could be acknowledged and taken into account prior to the wrongful death action. See Perkins v. Variety Children’s Hospital, 413 So.2d 760, 763-64 (Fla.3d DCA 1982); Alfone, 432 A.2d at 865-70. The other problems perceived by the majority are simply insufficient reasons to deny the decedent’s beneficiaries their statutory right to recover compensation for their losses.

For these reasons, I dissent from the result reached by the majority.


author: McDonald, justice.

text:
    Emily GOODING, as personal representative of the Estate of T. Hagood Gooding, deceased, Petitioner, v. UNIVERSITY HOSPITAL BUILDING, INC., d/b/a Memorial Hospital of Jacksonville, etc., Respondent.
    No. 62828.
    Supreme Court of Florida.
    Jan. 19, 1984.
    Rehearing Denied March 22, 1984.

      Richard W. Ervin, Brian S. Duffy and Robert King High, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and V. James Facciolo of Searcy & Facciolo, Jacksonville, for petitioner.
    Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp, Childs, Mickler & Cohen, Jacksonville, for respondent.
    Larry Klein, West Palm Beach, for Academy of Florida Trial Lawyers, amicus curiae.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for Dade County Trial Lawyers Ass’n, amicus curiae.
    James E. Cobb and Jack W. Shaw, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, and John E. Thrasher, Jacksonville, for Florida Medical Ass’n, amicus curiae.
   McDonald, justice.

This case is before us to review a district court decision, University Hospital Building, Inc. v. Gooding, 419 So.2d 1111 (Fla. 1st DCA 1982), which certified the following questions:

1. WHETHER PLAINTIFF IN A WRONGFUL DEATH ACTION MUST PROVE THAT MORE LIKELY THAN NOT THE DEATH WAS CAUSED BY DEFENDANT’S NEGLIGENCE.
2. WHETHER A THEORY OF RECOVERY FOR LOSS OF A CHANCE TO SURVIVE PREDICATED UPON ALLEGED MEDICAL MALPRACTICE IS ACTIONABLE IN FLORIDA; AND, IF SO, (A) WHETHER THE TRIAL COURT PROPERLY INSTRUCTED ON SAME, AND (B) WHAT IS THE APPROPRIATE MEASURE OF DAMAGES?

Id. at 1115. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. We answer the first question in the affirmative, the second question in the negative, and approve the decision under review.

On the afternoon of October 14, 1976 T. Hagood Gooding suffered lower abdominal pain and fainted at home. Mr. Gooding’s wife called the office of Mr. Gooding’s gas-troenterologist, Dr. Borland, to inform Dr. Borland of these symptoms. Mr. Gooding was transported to the emergency room of Memorial Hospital of Jacksonville. The emergency room staff failed to take a history or to examine Mr. Gooding in the belief that Dr. Borland, who was in the hospital and aware that Mr. Gooding was coming to the emergency room, would arrive shortly. Dr. Borland did not respond to repeated paging. Mr. Gooding complained of increasing abdominal pain and asked to use a bedpan. Soon after straining on the bedpan, Mr. Gooding could not catch his breath. Dr. Borland arrived in the emergency room when Mr. Gooding went into cardiac arrest. Mr. Gooding died about forty-five minutes after arriving at the hospital. The autopsy revealed that he died from a ruptured abdominal aortic aneurysm which caused massive internal bleeding.

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Good-ing’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive. Even so, the trial court denied the hospital’s motion for directed verdict on causation. In addition to the standard jury instruction on negligence and over the hospital’s objection, the trial court instructed the jury that they could find for Gooding if the hospital destroyed Mr. Gooding’s chance to survive. The jury found the hospital liable and awarded $300,000 in compensatory damages to Gooding’s estate.

The hospital appealed. The district court reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The district court certified the questions above and recognized the apparent conflict between this decision and the decisions of the third and fourth districts in Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974), and Dawson v. Weems, 352 So.2d 1200 (Fla. 4th DCA 1977).

To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed. Wale v. Barnes, 278 So.2d 601, 603 (Fla.1973). In this case Dr. Bailey’s testimony established the standard of care and the hospital’s breach of that standard when its emergency room staff failed to diagnose and treat Mr. Gooding. The critical issue here is whether the district court correctly decided that the hospital was entitled to a directed verdict because the plaintiff failed to prove causation. We hold that it did and approve the decision of the district court.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla.1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Prosser, Law of Torts § 41 (4th Ed.1971) (footnotes omitted).

Mrs. Gooding first contends that the estate presented sufficient expert testimony for a jury to find the hospital’s negligence more likely than not constituted a substantial factor in Mr. Gooding’s death. She claims that the district court impermis-sibly reweighed the evidence and substituted its own judgment in place of the jury verdict. This is not so. Our review of the evidence convinces us that the testimony established a no better than even chance for Mr. Gooding to survive, even had there been an immediate diagnosis of the aneurysm and emergency surgery. Therefore, a jury could not reasonably find that but for the negligent failure to properly diagnose and treat Mr. Gooding he would not have died.

Mrs. Gooding also contends that Florida courts have recognized a cause of action for loss of a chance to survive, even where the patient’s chances of survival were evenly balanced or less than likely in decisions of the third and fourth district courts of appeal in Hernandez v. Clinica Pasteur, Inc. and Dawson v. Weems. In Hernandez the wrongful death action was based upon the defendant’s failure to diagnose and treat a heart condition when prompt diagnosis and treatment would have given the patient a better chance to live. The district court reversed a directed verdict in favor of the defendants, on the grounds that the plaintiff introduced sufficient evidence to create a jury question on causation.

The issue of proximate cause was as to whether appellees’ malpractice contributed to the cause of death. In this connection, the testimony that appellant’s decedent would have had a better chance to survive if he had received prompt medical attention was sufficient to form a basis for the submission of the issue to the jury.

293 So.2d at 750. In Dawson v. Weems the fourth district cited Hernandez to support a holding that a jury could properly find that a hospital caused a patient’s death by giving him bank blood instead of the fresh blood requested, thereby depriving the patient of his “best chance” to survive, notwithstanding the plaintiffs failure to prove this deprivation either contributed to the patient’s death or made his survival unlikely. 352 So.2d at 1203. These cases suggest a standard we cannot accept.

Neither Hernandez nor Dawson contains any reasoning or authority to support a rule relaxing the more likely than not standard of causation in medical malpractice actions although they do hold that a plaintiff may go to the jury on proximate cause merely by showing that the defendant decreased the chances for survival, no matter how small. Those cases are antithetical to our concept of proximate cause and are disapproved.

There is some authority for the loss of a chance to survive theory from other jurisdictions. The reasoning behind this theory was perhaps best stated in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966) as follows:

When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.

The plaintiff in Hicks, however, also met the more likely than not test because expert testimony established that the patient “would have survived” with prompt diagnosis and surgery. Id. In Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the Supreme Court of Pennsylvania approved the loss of a chance theory, citing Hicks and section 323(a) of the Restatement (Second) of Torts (1965). The Hamil court held that

once a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.

Id. at 272, 392 A.2d at 1288 (footnote omitted). The plaintiff in Hamil also met the more likely than not standard with expert testimony that the patient had a seventy-five percent chance of recovery with prompt treatment. Id. Other jurisdictions have allowed recovery even where the chance of survival was less than even. See James v. United States, 483 F.Supp. 581 (N.D.Cal.1980) (negligent diagnosis which destroys even the smallest chance to prolong life or reduce suffering may be actionable); Kallenberg v. Beth Israel Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508 (N.Y.App. Div.1974), affirmed, 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128 (1975) (proximate cause is a jury question where evidence indicates that the patient had a twenty to forty percent chance of survival with proper treatment); Hershovits v. Group Health Cooperative, 99 Wash.2d 609, 664 P.2d 474 (1983) (negligent diagnosis that reduced a patient’s chance of survival from thirty-nine to twenty-five percent created jury question on proximate cause).

Relaxing the causation requirement might correct a perceived unfairness to some plaintiffs who could prove the possibility that the medical malpractice caused an injury but could not prove the probability of causation, but at the same time could create an injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably rather than possibly caused the injury. See e.g. Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975) (plaintiff in legal malpractice action must show that,, but for the attorney’s negligence, the plaintiff had a good cause of action in the underlying suit). We cannot approve the substitution of such an obvious inequity for a perceived one.

We believe the better course would be to retain the more likely than not standard of causation in medical malpractice actions, as stated by the Supreme Court of Ohio as follows:

In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiffs evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient’s survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived.

Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 253-54, 272 N.E.2d 97, 104 (1971). In Cooper, as in the case at bar, the plaintiff sued a hospital and other health care providers for failing to properly diagnose and treat a patient in the hospital’s emergency room. The patient in Cooper later died of a skull fracture which caused intracranial pressure and hemorrhage. The plaintiff’s expert witness testified that the patient would have had about a fifty percent chance of survival with surgery. The Cooper court affirmed a directed verdict for the defendants, rejecting the plaintiff’s arguments for a lesser standard of causation in loss of a chance cases.

Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice.

Id,., at 251-52, 272 N.E.2d at 103. Cooper has been followed in other jurisdictions, see Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct.App.1980); Morgenroth v. Pacific Medical Center, Inc., 54 Cal.App.3d 521, 126 Cal.Rptr. 681 (Ct.App.1976), and reflects the majority rule of jurisdictions considering this issue.

We agree with the majority rule as enunciated in Cooper and hold that a plaintiff in a medical malpractice action must show more than a decreased chance of survival because of a defendant’s conduct. The plaintiff must show that the injury more likely than not resulted from the defendant’s negligence in order to establish a jury question on proximate cause. In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome. In the case under review Mrs. Gooding failed to meet this test by presenting evidence of a greater than even chance of survival for Mr. Gooding in the absence of negligence. The district court properly ruled that the trial court should have granted the hospital’s motion for directed verdict.

For the reasons stated above, we approve the decision under review and answer the first certified question in the affirmative and retain the more likely than not standard of causation in medical malpractice actions. We answer the second question on allowing recovery for the loss of a chance to survive in the negative. We leave the question of a proper instruction and measure of damages to a future case meeting the standard for recovery.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and SHAW, JJ., concur.

ADKINS, J., dissents.

      . The actual causation instructions given are as follows:
      "Negligence is a legal cause of death and damages if it directly and in natural and continuous sequence produces or contributes substantially to producing such death, so that it can reasonably be said that, but for the negligence, the death would not have occurred. If you find that Hagood Gooding had a significant chance of survival and if you find that negligence on the part of the defendant, its agents or servants, destroyed Mr. Gooding’s chances for survival, then the negligence of that defendant or defendants — that defendant is a legal cause of injury ”. (Emphasis added.) In our view the trial judge erred in adding this change to the standard jury charges on legal cause.

      . We have also held that a person convicted of crime is not entitled to relief from his conviction because of ineffective assistance of his counsel unless he could show that this deficient conduct likely affected the outcome of court proceedings. Knight v. State, 394 So.2d 997 (Fla.1981).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. John Roger SHERRY, Respondent.
    No. 63814.
    Supreme Court of Florida.
    Feb. 16, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, for complainant.
    Sidney L. Matthew of Gorman & Matthew, Tallahassee, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign from The Florida Bar and Amended Petition for Leave to Resign from The Florida Bar pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petitions state:

1. [Respondent] was admitted to practice before [T]he Florida Bar in 1975.
2. On February 1983 the Commonwealth of Massachusetts entered a Bill of Indictment against [Respondent] for an alleged violation of the laws of the State of Massachusetts which constitute a felony under the laws of the State of Massachusetts, to-wit: conspiracy to traffic in controlled substances prohibited by Massachusetts law. The Court accepted the [Respondent’s] guilty plea on June 17, 1983.
3. Other than the foregoing, no other past or pending disciplinary actions or criminal proceedings have been brought against the [Respondent].
[4.] [Respondent] herein requests this Court to enter an Order granting [Respondent’s] resignation without leave to apply for admission permanently.

The Florida Bar having now filed its responses supporting the Petition and Amended Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.-08(3) are fully satisfied, the Petition and Amended Petition for Leave to Resign without leave to reapply are hereby approved and John Roger Sherry’s name is hereby stricken from the roll of attorneys in the State of Florida effective this date.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OV-ERTON, MCDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Lawrence M. AGLOW, Respondent.
    No. 64674.
    Supreme Court of Florida.
    Feb. 16, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for complainant.
    Lawrence M. Aglow, in pro. per.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Resignation from The Florida Bar pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition states:

1. The respondent, Lawrence M. Aglow, is, and at all times hereafter mentioned was, a member of [T]he Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. Respondent was admitted to [T]he Florida Bar on December 14, 1973.
3. On or about April 21, 1977, Respondent was granted Letters of Administration as a Co-Personal Representative, in the Estate of Irma Odza, Deceased, in Broward County, Circuit Court Case 77-1143. Respondent also served as counsel for the Personal Representative.
4. Thereafter, Respondent was accused of certain improprieties concerning the administration of the said estate relating to the alleged maintenance of estate assets in an improper manner, and alleged failure to close the said estate properly.
5. Respondent was DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania on April 7, 1983.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Resignation from The Florida Bar without leave to reapply is hereby approved and Lawrence M. Aglow’s name is hereby stricken from the roll of attorneys in the State of Florida effective March 19, 1984, giving him time to close out his practice and protect any remaining clients.

It is so ordered.

BOYD, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: LARRY G. SMITH, Judge. PER CURIAM.

text:
    LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a Kentucky corporation authorized to do business in Florida, and E.E. York, Appellants, v. Charles G. HICKMAN and Mary Hickman, his wife, Appellees.
    No. AK-377.
    District Court of Appeal of Florida, First District.
    April 12, 1983.
    Rehearing Denied Oct. 6, 1983.

      DuBose Ausley and William M. Smith of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellants.
    Stanley Bruce Powell of Powell, Powell & Powell, Niceville, for appellees.
   LARRY G. SMITH, Judge.

Appellants appeal an adverse jury verdict awarding compensatory damages in the amount of $50,000.00 each to Mr. and Mrs. Hickman, and assessing $7,000,000.00 in punitive damages against the defendant, Louisville and Nashville Railroad. Appellants raise the following issues:

(1.) A new trial on all issues is required because plaintiffs’ testimony contained elements of fraud and misrepresentation.

(2.) The issue of punitive damages should not have gone to the jury.

(3.) The punitive damage award is preempted by comprehensive federal laws and is also unconstitutional.

(4.) The $7,000,000.00 punitive damage award is clearly excessive.

(5.) The trial court committed numerous evidentiary and procedural errors.

Appellees cross-appealed, asserting that there was no newly discovered evidence and the trial court erred in granting a new trial on Mrs. Hickman’s consortium claim.

This case arises out of the derailment of a Louisville and Nashville Railroad (L & N) train occurring in Okaloosa County, Florida. The train in question was over a mile and a half long and weighed 11,500 tons. Sixty-seven of the cars contained hazardous chemicals. The derailment occurred on April 8, 1979.

On that day the plaintiff, Charles Hickman, then 61 years old, went to check the fishing conditions in the Yellow River. He parked his pickup truck about 100 feet below the L & N trestle which crosses the river. The train was going across the trestle when he pulled up to the bluff. He testified that the train was travelling faster than he remembered seeing a train travel on that track. Moments after he arrived, a rumbling sound began in the trees behind him, and when he turned around, he saw railroad cars flying into the air. He knew that his way back to the highway would be blocked by the wrecked train, so he headed downriver. A few hundred feet downriver he stopped his truck and started to get out; it was just like he had been hit in the face with a tear gas bomb; he could neither see nor breath. He slammed the truck door, covered his face with a handkerchief, and waited until his eyes cleared. At that time, he saw a three foot deep fog all over the ground. Eventually, a light breeze came up and blew the heavy part of the fog away. He put his handkerchief over his mouth and nose and ran from the truck. There was an explosion before he got up the hill, then a second explosion, bigger than the first, when he got to the top of the hill. He met some firemen at the top of the hill, was given first aid, and carried to the hospital in an ambulance. He stayed there four days. Subsequently, he was forced to retire from his job because of the lung condition caused by the inhalation of poisonous gases. Mr. Hickman filed suit against L & N Railroad, E.E. York, the engineer of the train, W. Johnson, the conductor, and John Durgens, the brakeman. Mr. Hickman’s wife, Mary, joined the suit seeking loss of consortium.

Prior to trial the plaintiffs filed a request for admissions. The defense did not respond to the request until 125 days after filing. Its response consisted of a motion to strike the admissions on the grounds that they were contained in a report of the National Transportation Safety Board and that 49 U.S.C., Section 1903(c) prohibited the use of such reports in civil trials. The trial court denied the motion to strike, and appellants argue that the court erred in so doing.

Federal courts have consistently interpreted Section 1903(c) to prohibit the use of the agency’s findings and conclusions only when they are identified as such. This is to prevent the findings from being given undue weight by the jury. See, Berguido v. Eastern Airlines, Incorporated, 317 F.2d 628 (3rd Cir.1963), cert. den. 375 U.S. 895, 84 S.Ct. 170, 11 L.Ed.2d 124; American Airlines, Inc. v. United States, 418 F.2d 180 (5th Cir.1969). See also, Ratner v. Arrington, 111 So.2d 82 (Fla. 3rd DCA 1959). The request for admissions contained findings and conclusions of the agency but did not identify them as such. The court was correct in denying the motion to strike, and permitting the admissions to go to the jury. The following facts were admitted:

(1.) The total tonnage of train number 403 was greater than that recommended by AAR Train Track Dynamics Guidelines for the grades and curves in the derailment area.

(2.) The actual weight of train number 403 was 732 tons greater than the weight indicated on its train consist information.

(3.) The track approaching the derailment site was a combination of curves and grades that required special train make-up and train handling characteristics.

(4.) The train was not slowed adequately before entering the sag as recommended by L & N Rules and AAR Track Train Dynamics Guidelines.

(5.) Train 403 derailed while moving around a four degree two minute curve. Twenty-nine cars and twenty-eight tank cars derailed.

(6.) Locomotive Unit 4129 had been malfunctioning by shutting itself down on the day of the derailment. It had shut down three times prior to the derailment occurring and had to be restarted each time by the engineer. Following the derailment it was found to be shut down again.

(7.) The train had insufficient power to pull the grade into Crestview from Yellow River Bridge.

(8.) This derailment occurred because of a large compressive force generated between the thirty-sixth and thirty-seventh cars which was caused by one or a combination of the following: A. Excessive train tonnage, B. Improper train handling.

The tract in the area of the Yellow River trestle crosses sag and dip terrain. In addition, the path taken by the train required it to negotiate a two degree curve followed by a three degree curve while proceeding downhill to the river. After crossing the trestle, the train began to move uphill, and while doing so was required to negotiate a four degree two minute curve, followed by a four degree fifteen minute curve, then a four degree curve. The train derailed when the lead locomotive was in the vicinity of this final curve.

American Association of Railroads (AAR) and L & N Rules recommend that train speed be reduced prior to entry into such an area. The rules also recommend that no brake applications be made in such an area so as to prevent excessive slack adjustment within the train which could result in breakage or derailment.

The track speed limit prior to entry into the Yellow River trestle area is 49 miles per hour. The speed limit within the Yellow River trestle area is 35. Witnesses testified that the train was travelling in excess of 55 miles an hour prior to its entry into the Yellow River trestle area. Evidence from L & N’s engineer shows that the train was travelling 40 miles an hour on the downgrade approaching the Yellow River in spite of five brake applications, including two full service applications. A little more than one-half of the train was across the river when the derailment occurred. When the brakes went into emergency immediately following the derailment, the locomotive was travelling at 35 miles an hour.

Engineer E.E. York was familiar with the AAR Guidelines recommending that the tonnage of a train be limited to 8,000 tons when it is negotiating curves over two degrees or grades over one percent at 35 miles an hour. The train that morning weighed 11,500 tons. It was one and one-half miles long. He was also aware of the rules recommending that no brake applications be made within, near the beginning, or near the end of a curve in excess of two degrees. Nevertheless, he made five applications in the area because conditions demanded it. He testified that he had had trouble on that grade before, such as broken knuckles, and drawheads. He has also failed to make the grade in the past.

The conductor, W. Johnson, testified that L & N had never informed him of the rule recommending a train be limited to 8,000 tons if it is to negotiate a one percent grade at 35 miles per hour. As conductor, he has the right to pull cars off the train if it is overweight, but L & N decides how heavy and how long a train will be, and the crew just operates it. His only function is to compute the horsepower versus the tonnage to determine if the train is overweight. Based on the horsepower available, he was of the opinion that the train was incapable of taking the Crestview grade at 30 miles per hour. He thought that at best it could take the grade at 8 to 12 miles per hour.

The plaintiffs’ expert, Rolf Roley, testified that there is no “fudge factor” in the AAR Rules. An 11,500 ton train on a one percent grade at 30 miles per hour is grossly overloaded. He was of the opinion that if an engineer were required to perform three braking operations at the end of which he was still going 40 miles per hour downgrade, the train would be completely out of control.

With regard to her loss of consortium claim, Mrs. Hickman testified that she and her husband had been married for 28 years, and had had no marital problems as a result of the accident. After trial, appellants discovered that Mr. and Mrs. Hickman had been divorced twice, once prior to and once after the accident. The trial court ordered a new trial on the question of Mrs. Hickman’s loss of consortium claim, but denied the remainder of appellants’ post-trial motions.

Relying on Alston v. Shiver, 105 So.2d 785 (Fla.1958), appellants argue that a new trial is required on all issues because of the falsity of Mrs. Hickman’s testimony. In Alston, the Supreme Court noted that one of the prerequisites for granting a new trial on the basis of newly discovered evidence is that the evidence be such that it would probably change the result of the case upon a new trial. The court said that because of objection to the general rule, and because of the courts’ and the public’s abhorrence of false testimony, an exception to the rule had been established. Thus, where it is shown that the prevailing party knowingly gave or used false testimony, a new trial on all issues is allowable at the court’s discretion without it having to be first shown that the newly discovered evidence will probably produce a different result on a new trial. The court observed that the trial judge had not exercised his discretion because he felt he was precluded from doing so by Townsend v. Gibson, 67 So.2d 225 (Fla.1953). The court said the case was not controlled by Townsend, but by Ogburn v. Murray, 86 So.2d 796 (Fla.1956).

In Ogbum, the plaintiff testified falsely as to his post-injury wages. The court agreed with counsel for the defendants that it could not have been anticipated that the plaintiff would give false testimony as to his earnings, even though it might have been expected that counsel for the plaintiff would attempt to prove loss of past and future wages as one element of the damages sought in the action. The court went on to say that even if the defendants and their counsel were technically at fault in failing to have this evidence available at trial, the rule as to newly discovered evidence is not inflexible and must sometimes bend in order to meet the ends of justice. At 798. The court concluded that it could think of no more appropriate situation for “bending” the rules than the one presented, i.e., where the only reasonable and logical inference is that the plaintiff deliberately falsified his earnings. See also, Drew v. Chambers, 133 So.2d 589 (Fla. 1st DCA 1961).

Taken together, these cases stand for the proposition that (1) a party is not required to anticipate false testimony from the opposing party, and is, therefore, not required to discover evidence which would refute the false testimony; and (2) that where the plaintiff testifies falsely concerning a material fact, or relies on false testimony concerning a material fact, the opposing party in moving for a new trial is not required to show that the newly discovered evidence would alter the course of the trial. However, such a motion is directed to the sound discretion of the trial judge. Alston v. Shiver; Ashland Oil, Inc. v. Pickard, 289 So.2d 781 (Fla. 3rd DCA 1974), cert. den. 300 So.2d 897 (Fla.1974). In the instant case, while Mrs. Hickman’s false testimony was material with regard to her derivative claim, her testimony with regard to Mr. Hickman’s injuries was merely cumulative. Accordingly, on this record, we cannot say that the trial court abused his discretion in granting a new trial as to Mrs. Hickman’s claim only.

Appellants also argue that punitive damages are not available to a private individual in a negligence suit because Congress has preempted state regulation of railway safety. Appellants rely upon Silkwood v. Kerr-McGee Corp., 667 F.2d 908 (10th Cir.1981). We disagree. Preemption does not automatically apply merely because Congress has acted in such a way as to affect a given industry. Florida Lime and Avacado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), reh. den. 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d 1082. Preemption will not be presumed, and even where it is clear that preemption applies, state law is invalid only to the extent that it is preempted. People of the State of Illinois v. Kerr-McGee, 677 F.2d 571, 579 (7th Cir.1982); State, etc. v. Southeastern Fisheries Ass'n., 415 So.2d 1326 (Fla. 1st DCA 1982). Additionally, cases dealing with the question of preemption as it applies to the nuclear power industry have only limited application to the instant question, because that industry was initially developed by the federal government, with the states only recently moving into the field, and because the industry is so closely associated with national security. Cf. 667 F.2d at 579 n. 16.

Finally, appellants argue that the amount of punitive damages is excessive. We tend to agree, but recent Florida Supreme Court decisions have left us with very restricted powers of review in this area. See, Wackenhut Corp. v. Canty, 359 So.2d 430, 441 (Fla.1978) (Judge Robert Smith dissenting). Post-Wackenhut, it is still proper to issue an order for new trial or remittitur where the manifest weight of the evidence shows that the amount of punitive damages assessed is out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct. But, either this finding must be affirmatively supported by the record, or the judge must find that the jury was influenced by matters outside the record. Arab Termite and Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982). The trial judge declined to order a new trial, or a remittitur, and we are unable to find the requisite affirmative showing in the record. There is no indication that the jury was influenced by matters outside the record.

It is also still proper to set aside the jury’s verdict if it appears that the award is out of all proportion to the defendant’s net worth. Id. at 1043. However, at trial L & N introduced no evidence concerning its net worth. It did not contend at trial, nor does it contend here, that the award is sufficient to cause financial hardship. In absence of any evidence as to L & N’s net worth, we cannot say that the award was excessive. Bould v. Touchette, 349 So.2d 1181, 1187 (Fla.1977). Appellants have failed to demonstrate that the trial court abused its discretion in refusing to grant a new trial or a remittitur. Lassitter v. International Union of Operat ing Engineers, 349 So.2d 622, 627 (Fla.1976).

Appellants’ remaining points on appeal being without merit, the judgment appealed from is due to be and is hereby

AFFIRMED.

JOANOS, J., and SHAW, LEANDER J., Jr., Associate Judge, concur.

ON DENIAL OF MOTION FOR REHEARING

PER CURIAM.

Louisville and Nashville Railroad Company’s appellate counsel, who were not trial counsel below, have filed a lengthy motion for rehearing and motion for rehearing en banc. The panel, consisting of Judge Smith (L.), Judge Joanos, and Judge Zeh-mer, has considered appellant’s motions and attachments, appellees’ response, and the supplemental authorities filed by both parties. In addition, Judge Zehmer has fully reviewed the record on appeal and the briefs of the parties, and has had the benefit of listening to the tape recording of the oral arguments presented before the original panel of this court.

Appellant’s motions consist essentially of a ré-argument of the case,' placing renewed emphasis, among other things, upon the amount of punitive damages, and the disparity between the punitive damage award and the compensatory damages awarded to appellee Charles G. Hickman. We find that these arguments relating to the issue of exeessiveness of the award and other issues were fully considered and addressed in the original opinion in keeping with what we consider to be the controlling principles announced by the Florida Supreme Court. We therefore adhere to our original opinion as to all issues raised on this appeal.

The motion for rehearing is DENIED.

LARRY G. SMITH, JOANOS and ZEH-MER, JJ., concur.

      . 49 U.S.C. § 1903(c) provides:
      No part of any report of the Board, relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.

      . Plaintiffs’ evidence explaining slack action was uncontroverted. Slack in a train amounts to six to eight inches per car. Run-in occurs when the rearend of the train tends to catch up with the front end. Run-out occurs when the train stretches. If run-in is excessive, it can cause a collision within the train — a slack action collision — which is very dangerous. The seriousness of a slack action collision does not depend so much on the speed of the train as on the load and running characteristics of the cars — light car versus heavy car. It is not advisable to brake in sag and dip terrain because it takes so long for air pressure to get to the back of the train, causing the front to decelerate before the rear, which increases run-ins. The forces generated as a consequence of run-ins can cause a light car to be "buffed off” the track. Similarly, excessive slack action on a curve can cause a roll-over derailment.

      . The question of punitive damages was properly submitted to the jury. There was evidence from which it could have found that L & N systematicly made up overweight trains and required them to be run through the area at the maximum allowable speed, without regard to industry guidelines, its own train handling rules, or the hazardous nature of the cargo carried; and that L & N persisted in those infractions in spite of numerous previous problems, such as breakage, caused by them. The jury could also have found the engineer drove a grossly overweight train, knowing it was loaded with hazardous chemicals, at speeds well in excess of the maximum permissible, without regard to safe handling rules, and with full knowledge of the risks involved. See, Mercury Motors Exp. Inc. v. Smith, 393 So.2d 545 (Fla.1981).

      . This is probably a classic example of the type of case described by Mr. Justice Adkins in Lassiter v. International Union of Operating Engineers, 349 So.2d 622, 626 (Fla.1976), “... where the conduct by a very affluent defendant is outrageous but the resultant injury or invasion ed legal rights to the plaintiff is minimal, although the conduct has the propensity of causing great harm if continued_” Of course, there was no direct evidence here that the L & N was “very affluent.” Nonetheless, the jury did not need a balance sheet to know that railroad operations of the duration and magnitude indicated by the evidence are not conducted by penniless, small-time corporations. Furthermore, the amount of the punitive damage award could also have reflected the jury's reaction to the evidence of L & N’s assessment of its own damages as running in excess of one million dollars in lost equipment, cargo, engineering and repair costs. The query might well have been: if L & N appeared willing to expose itself to property damages of this extent, not to mention the risks to its own personnel, what amount of punitive damages would be necessary to get L & N’s attention, and deter it (and others) from similar conduct in the future? Viewed in this light, particularly in view of the evidence tending to show that the negligent practices disclosed were not a one-time occurrence, the punitive damage award of seven million dollars takes on a more realistic hue.

      . Judge Zehmer succeeded Judge (now Justice) Shaw as a panel member upon Justice Shaw’s elevation to the Supreme Court of Florida.


author: ' PER CURIAM.

text:
    In re FORFEITURE OF 1978 CHEVROLET VAN TITLE NO. 15564608 VEHICLE IDENTIFICATION NO.: CGL 258U211472.
    No. 82-541.
    District Court of Appeal of Florida, Fourth District.
    April 20, 1983.
    Steven F. Jackson of the Law Offices of Steven- F. Jackson, Fort Lauderdale, for appellant-Timothy E. Stallings.
    Geoffrey D. Cohen, Hollywood, for appel-lee-Sheriff of Broward County, Florida.
   ' PER CURIAM.

AFFIRMED upon authority of In re: Forfeiture of 1979 Toyota Corolla, 424 So.2d 922 (Fla. 4th DCA 1982). Issuance of the mandate in this cause will be withheld pending final disposition of the petition for review filed in the controlling decision, in accordance with Jollie v. State, 405 So.2d 418 (Fla.1981).

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    Freda Fay EDWARDS, Appellant, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. 83-223.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Rehearing Denied March 20, 1984.
    Daniel P. Tunick, Miami, for appellant.
    Stanley M. Danek, Atty. for the Div. of Retirement, Dept, of Admin., Tallahassee, appellee.
   DELL, Judge.

Appellant, Freda Fay Edwards, challenges the denial of her claim for accumulated contributions made to the Florida Retirement System by her deceased father. We affirm.

Appellant’s father, Worth Edwards, a Broward County sheriff’s deputy with more than twelve years service, died in the line of duty. The decedent had been a special risk member of the Florida Retirement System. Prior to his death he named appellant, his adult daughter, as his designated beneficiary pursuant to Section 121.-091(8), Florida Statutes (1981). Two other adult children and three minor children also survived the decedent.

Appellant applied for benefits as the decedent’s designated beneficiary. The Division of Retirement of the Department of Administration (the Division) denied appellant’s claim and informed appellant that the special provisions of Chapter 121 governing payments of benefits for members killed in the line of duty, Section 121.091(7)(c), required payment of the death benefits for the use of the decedent’s minor children. The Division determined that Section 121.-091(7)(c) took precedence over Section 121.-091(7)(b) which provides that the designated beneficiary shall receive accumulated contributions in the event a retired member dies without having received an equivalent amount in benefit payments. The Department of Regulation denied appellant’s petition for review.

Appellant contends that the Division’s interpretation that line-of-duty deaths shall be treated differently from other deaths infringes upon her constitutional and contractual right to decedent’s accumulated contributions.

We note at the outset that appellant did not establish that any accumulated contributions will exist after the payment of benefits to the decedent’s minor children pursuant to Section 121.091(7)(c). Rather, she seeks payment of the decedent’s accumulated contributions in addition to the amount of benefits which the decedent’s minor children will receive. We find her position without merit for several reasons.

The benefits paid to a surviving spouse or to a member’s minor children as a result of the member’s death occurring in the line of duty does not result from administrative action of the Division. The statute provides a special benefit to a decedent’s surviving spouse and/or the decedent’s surviving minor children, without regard to the decedent’s time of service. We do not construe this provision of Chapter 121 as creating a special fund as appellant contends, but rather we construe this section as creating a special benefit. Chapter 121 provides for the payment of benefits from a single fund created by contributions from members of the fund and contributions paid by the member’s employer (as defined in Sections 121.021; 121.061; and 121.071, Florida Statutes (1981).

We find Rogers v. Rogers, 152 So.2d 183 (Fla. 1st DCA), cert. denied, 155 So.2d 695 (Fla.1963), inapplicable to the facts before the Division in the case sub judice, since appellant has not demonstrated here or before the Division that any accumulated contributions will remain after payment of benefits to the decedent’s minor children. Therefore, we need not reach the question of appellant’s entitlement to the balance, if any, of decedent’s contributions to the fund after payment of benefits to the decedent’s minor children pursuant to Section 121.-091(7)(c).

Accordingly, we affirm the decision of the Department of Regulation.

AFFIRMED.

ANSTEAD, C.J., and BERANEK, J., concur.


text:
    Daniel C. FOWLER, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee. Paul S. PARISER, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    Nos. 83-221, 83-222.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Rehearing Denied March 19, 1984.
    Cynthia S. Tunnicliff of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, for appellant.
    John S. Kalil of Sinoff & Alford, Jacksonville, for appellee.
   PER CURIAM.

We affirm because no reversible error has been made to appear and because the agency action is supported by record competent substantial evidence. Boyette v. State, Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977) and Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962).

Affirmed.

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    K.D. LEWIS ENTERPRISES CORPORATION, INC., a Florida corporation, Appellant/Cross-Appellee, v. Edward SMITH, Lucy Lang and Mildred Williams, Appellees/Cross-Appellants.
    Nos. 82-1313 to 82-1315.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    Rehearing Denied Feb. 21, 1984.

      William E. Weller of Rose & Weller, Cocoa Beach, for appellant/cross-appellee.
    Judith E. Koons of Central Florida Legal Services, Inc., Cocoa, for appellees/cross-appellants.
    James R. Grow and Richard E. Blumberg of The Nat. Housing Law Project, Berkeley, Cal., amicus curiae, on behalf of appel-lees/cross-appellants.
   FRANK D. UPCHURCH, Jr., Judge.

K.D. Lewis Enterprises Corporation, Inc., the owner and landlord of an apartment complex in Brevard County, appeals from a judgment awarding compensatory and punitive damages to several of its tenants, the appellees, for negligence. The tenants cross-appeal contending that the court erred in directing a verdict on the remaining portions of their counterclaim and on other grounds.

The tenants withheld payment of rent claiming that the landlord did not maintain their apartments and that a rental increase was unfair. When the rent was not paid, the landlord brought an action to recover possession. The tenants counterclaimed for declaratory and injunctive relief and damages. The counterclaim included an action for breach of contract and an action in tort for breach of the landlord’s duty to comply with applicable housing standards and housing codes, and breach of the duty of good faith in performance of the lease agreement.

The landlord moved to require the tenants to deposit the rent into the registry of the court pursuant to section 83.60(2), Florida Statutes (1981). When they failed to do so, the court issued writs of possession against Smith and Lang and entered a judgment of possession against Williams who had already vacated the premises.

The three cases were consolidated for the purpose of a joint trial. At a pre-trial conference, the court denied the landlord’s motions to dismiss the counterclaim and for judgment on the pleadings. However, the landlord was permitted to raise, over objection, the affirmative defenses of recoupment for unpaid rent and waiver of damages prior to delivery of the tenants’ notices of intention to withhold rent.

A jury trial was then held on the tenants’ counterclaim. Following the tenants’ case, counsel for the landlord moved for a directed verdict on the negligence and contract claims. After the landlord’s case, the trial court directed a verdict against the landlord on the negligence claim and directed a verdict against the tenants on the other counts due to the court’s belief that damages could not accrue until seven days after the tenants had delivered written notice of their intention to withhold rent.

In light of the trial judge’s rulings, the tenants took voluntary dismissals of the remaining counts of their counterclaim. Thus, only the issues of compensatory damages, punitive damages, and recoupment were submitted to the jury. Verdicts of compensatory damages for the tenants were entered in the amounts of $900 for Smith, $300 for Williams, and $900 for Lang. Punitive damages of $1,000, $400, and $1,100 were awarded to Smith, Williams, and Lang, respectively. The landlord was allowed recoupment of $900 against Smith, $300 against Williams, and $900 against Lang.

The first issue we consider is whether the court erred in refusing to permit the tenants to appear as representatives of a class composed of all the tenants in the complex. Florida Rule of Civil Procedure 1.220 establishes the prerequisites for class representation. When class representation is sought, the trial court must conclude that:

1. The members of the class are so numerous that separate joinder of each member is impracticable;
2. The claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class;
3. The claim or defense of the representative party is typical of the claim or defense of each member of the class;
4. The representative class can fairly and adequately protect and represent the interests of each member of the class.

Fla.R.Civ.P. 1.220(a).

Although class representation does not require an absolute identity of questions of law and fact among its members, issues such as involved here make probable substantially variable facts giving rise to different claims. While each tenant may have been affected by the omissions or non-compliance of the landlord, the extent, nature, and effect of such omission or noncompliance would unquestionably vary from apartment to apartment and from tenant to tenant. Therefore, we conclude that the trial court correctly refused to permit the tenants to appear as representatives of a class.

The next question is whether the trial court correctly issued the writs of possession. Resolution of this issue requires a consideration of section 83.60, Florida Statutes (1981):

Remedies; defenses to action for rent or possession; procedure.—
(1) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent or in an action by the landlord under s.83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s.83.51(1) [F.S. 1973], or may raise any other defense, whether legal or equitable, that he may have. The defense of a material noncompliance with s.83.51(l) [F.S. 1973] may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord as prescribed in s.83.56(4) [F.S.1973], specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. A material noncompliance with s.83.51(l) [F.S.1973] by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s.83.51(l) [F.S.1973]. After consideration of all other relevant issues, the court shall enter appropriate judgment.
(2)In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court, the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. Failure of the tenant to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default.

Tenants Smith and Lang contend that they were entitled to stay in their apartments without paying rent and without depositing the rent into the registry of the court. The tenants argue that the requirement of a rent deposit under section 83.60 applies only to an action for possession and that it does not apply here because the action for possession was coupled with counterclaims for injunctive relief and damages. In other words, the tenants argue that if they affirmatively seek relief the requirement of deposit of rent is no longer required. We do not agree.

At oral argument, counsel for the tenants candidly conceded that had the tenants’ suit proved to be without merit, a judgment for rent owed would have been valueless because they were “judgment proof.” We believe the Legislature anticipated such an eventuality in drafting the statute. As now framed, the landlord may recover his rent should the tenants’ suit have no legal basis. On the other hand, should the tenants’ suit have merit, the rent is not lost to them. To follow the course suggested by the tenants would enable a devious tenant to live rent free during the litigation, if he could frame a legally sufficient pleading. We see no more reason to expect a landlord to continue furnishing housing without rent than to expect an oil supplier to continue furnishing oil without payment during a period of litigation. Therefore, we have concluded that the trial judge was correct in issuing the writs of possession upon the refusal of Smith and Lang to deposit rent as required by the statute.

By so holding, we do not mean to imply that by failing to deposit rent, a tenant’s cause of action is lost to him. He loses only his right to retain possession of the premises if he fails to pay the rent to the landlord or into the registry of the court. Any cause of action against the landlord to which he may be otherwise entitled is still available to him.

The tenants attempted to support their position by citing Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975). In that case, the litigation arose from a lease agreement and option to purchase a home owned by the Geigers and leased to Freedman. Rent was not paid and the Geigers sought possession. Freedman counterclaimed contending that the home had not been completed and that the Geigers had not furnished a certificate of occupancy.

The trial court entered an order directing Freedman to place the back rent into the registry of the court in the sum of $7,200.00, and to pay into the registry of the court each monthly rental payment as it became due. Freedman complied with the order until October 1, 1974, when he failed to place the rent payment into the registry of the court. The Geigers then moved for a default but the motion was denied. On October 18, 1974, the Geigers again moved for default since a check dated October 7, 1974, had not cleared the bank and was returned to the court’s registry. Freedman deposited a new check into the registry of the court prior to the hearing on the motion for default. However, the trial court granted the motion for default and then entered final judgment for the Geigers.

In so doing, the trial court had apparently relied on section 83.60(2). The appellate court reversed the order of default and final judgment, stating:

Although the Geigers’ complaint contains, inter alia, a demand for possession, it also seeks other relief from Freedman, and Freedman’s answer and counterclaim not only denies the rental payments claimed by the Geigers to be due, but also seeks damages. This cause, then, is not an action solely for possession in which the statute could be applied to afford complete and appropriate relief.

314 So.2d at 190.

While this language is capable of the construction urged by the tenants, we think the holding should be limited to its facts. Freedman complied with the court order until the October payment was due. After his check for the October payment failed to clear, he deposited a new check into the court’s registry. Thus, unlike the tenants here, Freedman was in substantial compliance with the court’s order requiring payment of the rent into the registry of the court.

We interpret this case, as simply following the established policy of liberality in setting aside defaults to permit a trial on the merits. We do not find it persuasive for the position that any time a claim for possession is opposed by a counterclaim no deposit of rent into the registry of the court is required if the tenant intends to withhold payment of rent.

The next question we address is whether the court erred in directing a verdict against the tenants. The tenants included several counts in their counterclaim other than negligence, the only count ultimately submitted to the jury. The tenants contend that the court erred in directing a verdict against them as to those counts. The record, however, does not reflect that action by the court. When the court announced that it would grant a directed verdict to certain issues regarding the requirements of notice under section 83.56(1), Florida Statutes (1981), counsel for the tenants took a “voluntary dismissal” of all counts except the count founded on negligence. While this procedure was irregular, no directed verdict was entered and the counts were not considered by the jury. We conclude that these claims were simply abandoned by the tenants and the error sought to be raised by the tenants was not preserved for appeal.

As was previously noted, after the case was submitted on the remaining count of negligence, the jury returned verdicts for compensatory damages of $900 for Smith, $300 for Williams, $900 for Lang, and allowed the landlord a set-off for unpaid rent in these same amounts. As a consequence, the net judgment for each tenant for compensatory damages was zero.

The first question we address regarding the damage award is whether the court erred in permitting the landlord to amend its answer to raise the affirmative defenses of recoupment and waiver due to a lack of written notice of defects.

Florida Rule of Civil Procedure 1.190(a) provides that leave of court to amend shall be freely given when justice so requires. The landlord originally sought only possession in the county court. The motion to amend was filed sixty days after the answer to the counterclaim was filed and ten days before trial. Amendments to pleadings are favored and should be liberally allowed in furtherance of justice and to ensure that each case is determined on its real facts. Fla.R.Civ.P. 1.190. The decision of the trial judge to grant or refuse an amendment should not be disturbed absent some demonstration that he abused his discretion. McSwiggan v. Edson, 186 So.2d 13 (Fla.1966). The tenants have failed to allege, much less demonstrate, how they were prejudiced in their defense by the court’s order permitting the amendment. We therefore conclude that the decision was within the court’s discretion and there was no error.

The next question is whether the evidence supports a finding of compensatory damages. In the Lang and Williams eases, there was evidence as to the damages suffered by the tenants. In Lang’s case, clothes in the amount of $300 were damaged because of a leak in her closet. Williams testified she drove her car into a pothole in the parking area causing $100 in damage. No other specific injuries were demonstrated as to any person or property. As to Smith, he did not even testify or appear at the trial and problems with his unit were related by other witnesses.

The tenants assert that, as an additional element of damages, the jury was entitled to find “diminishment in value” of the rental premises under a negligence theory. In other words, the landlord breached its duties under the housing codes and its contractual obligations under the lease and as a result, the tenants did not receive as valuable a leasehold as they should have had the landlord lived up to his obligations. We conclude, however, that the tenants are incorrect and that they are arguing a contract theory of recovery rather than tort. For example, under a contract to Sell a car load of canned beans a canner agrees to furnish beans of a certain grade and quality. Through disregard of this duty or obligation, he furnishes a product not fit for consumption. If the buyer learns of the defect, his damages are limited to those available under contract even though there has been what may be termed a negligent breach of the duty imposed by the contract. On the other hand, he consumes some of the beans and becomes ill, he also has a cause of action for negligence for his personal injuries.

To recover for diminishment in the value of the premises, it is necessary for the tenant to comply with section 83.56, Florida Statutes (1981), which provides as follows:

Remedies; termination of rental agreement.
(1) If the landlord materially fails to comply with s.83.51(l) [F.S.1973] or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the non-compliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s.83.51(l) [F.S.1973] or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows:
Jjc * * * * *
(b) If the landlord’s failure to comply does not render the dwelling unit un-tenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.
sfs % * * * ⅝
(5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement. that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance.

The tenants contend that under Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981), the court gave the tenant a cause of action in negligence for the diminution in value of their leasehold. We disagree. First, Mansur was not a tenant in the unit where he was injured. Second, the court merely abandoned the doctrine of caveat lessee. It did not create a new cause of action in tort for the diminution in value of the premises. It only extended a duty to the landlord which had formerly been transferred to the tenant with possession. To accept the tenants’ argument that the notice under section 83.56 is not required because they framed their claim in negligence would defeat the legislative requirement of notice. Of course, where a tenant or his property is injured by the negligence of the landlord, his cause of action requires no notice under the statute.

In summary, we reject the tenants’ contention that they could recover damages under a negligence theory for the diminution in value of their premises. However, since there was some evidence of damage to the property of Lang and Williams, and the jury allowed a set-off in the exact amount of the compensatory damages, we affirm those awards. As to Smith, we hold that the trial court should have directed a verdict in favor of the landlord on the negligence count.

The final question is whether punitive damages were properly awarded. In their counterclaim, the tenants alleged that the landlord caused their injuries with wanton disregard or reckless indifference to their rights. Punitive damages are justified where torts are committed with fraud, actual malice, or deliberate violence or oppression, or when the defendant acts wil-fully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). We have reviewed the evidence and conclude that it fails to rise to this level. Therefore, the court should have granted the landlord’s motion to set aside the verdicts on punitive damages.

AFFIRMED in part, REVERSED in part.

DAUKSCH and COBB, JJ., concur.

      . See § 83.60(1), Fla.Stats. (1981).

      . Under Florida Rule of Civil Procedure 1.420, only an entire action may be voluntarily dismissed; there can be no partial dismissal and no dismissal of less than all causes of action. Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232 (Fla. 4th DCA 1976), and cases cited therein.