DAYTONA BEACH — The Florida Fifth District Court of Appeals has ordered the trial court to review the case of Roger Niehaus against Dennis Dixon.
The decision was issued on Feb. 16 by Judge Brian D. Lambert, with judges Jay P. Cohen and William D. Palmer concurring.
Niehaus sued Dixon, "alleging that Dixon negligently struck him in the head with the wing of an airplane that Dixon was operating, resulting in personal injury and damages to Niehaus," according to the appeals court decision.
Dixon said he was trying to taxi the plane off the runway when Niehaus ran toward the aircraft, slammed his fist into the right wing of the plane, fell to the ground, and screamed that Dixon had hit him with the plane.
Dixon accused Niehaus of failing to disclose that he had been in an automobile accident resulting in injuries ten months earlier, repeatedly lying during his deposition and intentionally concealing his medical history.
In ruling against Niehaus, the trial court said Niehaus was supposed to disclose that he had suffered injuries from a car accident 10 months earlier.
The appeals court, however, said Niehaus did “provide pertinent information and records about this accident when requested, but had not disclosed this information earlier because Dixon admittedly did not ask Niehaus about prior injuries or accidents in his initial discovery,” according to the appellate court's decision.
“Niehaus was under no obligation to voluntarily provide records or other information prior to being asked by Dixon,” Lambert said in the decision.
The trial court also said that Niehaus’ testimony at the hearing was false.
Niehaus, who said he could not work on airplanes anymore after the accident, was shown two photographs taken on different days.
He "testified that one photo showed him working on a plane and the second appeared to show that he was sitting on a stool taking a break but he 'probably' had been working on a plane," Lambert wrote in the decision.
Niehaus added that he was still physically able to work on planes, but problems with his memory wouldn’t allow him "to pursue obtaining a license in airplane maintenance."
When the trial court said the second photo that was seemingly of Niehaus doing work on an aircraft, "Niehaus testified that it looked as if he was 'looking for a screw or something in a screw can,'” according to the appellate court decision.
The trial court said Niehaus changed his testimony in response to the court’s comment, therefore accusing him of making a false testimony. The appellate court, however, did not entirely agree.
“This testimony did not clearly and convincingly demonstrate fraud,” Lambert said.
The trial court counted eight instances where it ruled that Niehaus made false statements or committed acts of intentional concealment.
The appeals court said the trial court needs to review the case because at least two of the eight instances were not supported by facts.