The Federal appeals court for Florida, Georgia, and Alabama, the 11th Circuit Court of Appeals, has affirmed a verdict in a car crash in the Florida Keys where a truck crashed into a car with four young women from Spain who were on vacation at the time. All four women died. The verdict was for approximately $12M.
The questions on appeal included whether you can sue an employer of a truck driver for vicarious liability as well as for negligent entrustment of the truck to the driver. The answer is you can. Here is what the court said:
Under Florida law, an employer “may be held liable for in-jury to a third party caused by” its employee’s negligent conduct “while acting in the scope of his authority.” Mallory v. O’Neil, 69 So. 2d 313, 314 (Fla. 1954). Generally, where “a plaintiff alleges and a defendant admits that the alleged torts took place during the course and scope of employment, employer liability can only be pursued on the basis of [vicarious liability] and not on the basis that the employer was negligent.” Delaurentos v. Peguero, 47 So. 3d 879, 882 (Fla. Dist. Ct. App. 2010) (citing Mallory, 69 So. 2d at 315).
But two exceptions to the general rule apply where a direct-liability theory “would impose additional liability” on the employer beyond vicarious liability for its employee’s negligence. Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977). First, an employer can be separately liable—in addition to vicarious liability—where there’s a pending punitive damages claim. Id. Second, an employer may be separately liable where the alleged direct liability takes the form of negligent entrustment. See id.
The jury heard evidence that Discount Rock’s owner had the truck Blanco was driving modified to carry an 1,100-gallon aluminum tank. The owner testified that, with a full tank, the truck’s combined weight was 20,000 pounds—and Fischer testified that the truck was nearly full the day of the accident, weighing around 19,500 pounds. The jury also heard evidence that Discount Rock’s owner never tested the truck’s brakes or maneuverability after the tank was installed—believing that the dealership tested it and that the “heavy duty” truck would handle the same as modified. And Discount Rock’s owner admitted that he didn’t train Blanco to operate the modified truck, instead only having Blanco shadow the outgoing driver for a week or two.
At the same time, Blanco testified that the modified truck “felt different than [Discount Rock’s] old one.” He told the jury that he did “everything in [his] power” to brake and maneuver to the right but “was being dragged” and couldn’t stop “because maybe [he] had too much weight from the water, plus the [port-a-potty] that [he] was [hauling].” Blanco also testified that the aluminum tank “sort of influenced in dragging [him]” and preventing him from stopping “because it’s very heavy, it weighs a lot.”
Florida Highway Patrol Corporal Perez echoed this testimony, explaining that the roadway evidence suggested that Blanco “actually tried to go to the right” to bypass the Nissan but couldn’t “because [the truck] had too much . . . a lot of water, I believe it was a full tank of water in the back, all that inertia go[ing] forward when [Blanco] tried to go to the right.”
Discount Rock seized on this explanation in its closing argument. It told the jury that the accident was “unavoidable” partly because Blanco “was unable to avoid the collision” when inertia caused by “the weight of the truck” prevented him from swerving around the Nissan. Indeed, Discount Rock specifically hearkened back to Blanco’s testimony about “being pulled,” and to Perez’s testimony that “inertia from the water in the tank dragged the truck away.” Discount Rock urged the jury not to hold it or Blanco responsible – pointing instead to Pinkerton’s, Del Okeyes’s, and Ponce’s responsibility for the accident.
As Discount Rock’s closing argument demonstrates, this case is essentially the paradigm example of negligent entrustment. There was sufficient evidence for the jury to find, as Clooney envisioned, that Discount Rock “kn[ew] that the vehicle ha[d]” a dangerous condition yet “allow[ed] one who [wa]s not aware of this dangerous condition to use it,” and an accident occurred because of that condition. See Clooney, 352 So. 2d at 1220. Because Discount Rock could be separately liable for entrusting the truck to Blanco in addition to being vicariously liable for Blanco’s negligence, the district court did not err in denying Discount Rock’s motion for judgment as a matter of law on the negligent entrustment claim.
Another question on appeal is what kind of presumption is the presumption of liability where a truck rear-ends a car. There are two types of presumptions: one vanishing and the other evidentiary where the jury hears about the presumption. Here, the court says that the presumption was vanishing because if the trucking company presents the types of evidence allowed to rebut the presumption the jury would never hear about the presumption. But the trucking company never presented evidence allowed to rebut the presumption. The Court said:
Florida courts have recognized four kinds of rebutting evidence in rear-end-collision cases: “(1) a mechanical failure in the rear driver’s vehicle, (2) the lead driver’s sudden stop, (3) the lead driver’s sudden lane change, and (4) the lead driver’s illegal or improper stop.”
… Discount Rock argues that it presented rebuttal evidence in two forms. First, it points to evidence that Del Okeyes and Ponce “illegally and unexpectedly took evasive action onto the shoulder” to avoid hitting the women’s Nissan, arguing that it was “an unavoidable accident precipitated by the sudden and unexpected actions of the two vehicles immediately ahead of” Blanco’s truck. Second, Discount Rock relies on evidence that the women’s “unexpected stop on a busy two-lane highway”—not “at an intersection or red light” but instead while “attempting to cross traffic into a scenic area”—caused Del Okeyes and Ponce “to take evasive action” in the first place. But Del Okeyes and Ponce’s evasive action is a non-starter. To rebut the presumption, Discount Rock had to show “the driver of the lead vehicle was a contributing cause of the collision.” Neither Del Okeyes nor Ponce was the “lead driver” in the collision.
As for evidence of the Nissan’s “unexpected stop,” “[i]t is well settled that a sudden stop, without more, is insufficient to overcome the presumption of negligence.” Clampitt, 786 So. 2d at 575. Instead, what’s required is evidence of “a sudden stop by the [lead] driver at a time and place where it could not reasonably be expected by the following driver.” Id. at 574 (citation omitted) (contrasting such evidence with “abrupt and arbitrary . . . ‘gotcha’ stop” in Eppler v. Tarmac America, Inc., 752 So. 2d 592 (Fla. 2000)).
So even if Discount Rock provided evidence that the women’s Nissan stopped suddenly—despite Fischer’s testimony that the Nissan was stopped or moving slowly for “at least five seconds” before impact, Pinkerton’s and Del Okeyes’s statements that the Nissan gradually slowed to a stop, and Ponce’s admission that he didn’t know how long the Nissan had been stopped—that’s not enough to rebut the presumption. The stop also had to be “at a time and place where it could not reasonably be expected by”
And that’s simply not the case here. The undisputed evidence showed that the turn into the scenic viewing area was both legal and expected. No signs prohibited drivers from turning into or parking at the scenic viewing area….
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