Negligence or Not? Florida’s “Remote Condition Standard for Establishing Proximate Cause in Motor Vehicle Accidents.”
In the recent case of Probkevitz v. Velda Farms, LLC. and Joseph Anthony Dixon, Florida’s Third District Court of Appeal (Third DCA) reversed the trial court’s denial of the plaintiff’s motion for a new trial because the trial court had “impermissibly allowed introduction of evidence of negligence [on the part of the minor decedent’s mother] and allowed the jury to consider such evidence.” No. 3D07-1052, Opinion filed September 9, 2009. The Third DCA further held that the trial court had: 1) abused its discretion by forbidding the presentation of the plaintiff’s rebuttal evidence; and 2) committed prejudicial error by allowing the traffic homicide officer who investigated the accident to render an opinion over the cause of the accident.
The opinion is instructive because it involves a situation where the trial court “impermissably allowed the introduction of evidence of negligence and allowed the jury to consider such evidence” in contradiction of the standard established by the Florida Supreme Court in D’Amario v. Ford Motor Co., 806 So. 2d 424, 436 (Fla. 2001), for determining when the introduction of evidence of the plaintiff’s or a third party’s negligence should be allowed at trial and considered by the jury. Moreover, the Probkevitz opinion reiterates well-settled areas of law concerning the admission of evidence and expert testimony. As plaintiffs' attorneys, we believe that the Third DCA’s decision is clearly correct because in this particular case, the Plaintiff was prejudiced by not one but several questionable rulings.
The Prokevitz case was a wrongful death action brought by the personal representative (the minor decedent’s mother) of the minor decedent’s estate. The decedent died as the result of an automobile accident in which she had been driving a vehicle owned by her mother. The decedent had a learner’s permit at the time of the accident which had been signed for by her mother.
Under Florida law, adults who sign for a minor learner’s permit are representing that they will not allow the minor to drive unless accompanied by a licensed Florida driver. On the night of the accident, the decedent had evidently taken the mother’s car without the mother’s permission or knowledge after the mother had gone to bed. Dixon (the defendant driver) had asserted as an affirmative defense that the personal representative’s action was barred, or that his percentage of fault should be reduced because of the mother’s negligence. Dixon later moved for leave to file a third-party complaint against the mother-personal representative in her capacity as a survivor, for vicarious liability, negligent supervision, and negligent entrustment. The trial court denied the counts related to negligent supervision and negligent entrustment.
The trial court then went on to make several conflicting rulings during the trial as to whether or not the jury would be allowed to consider the mother’s vicarious negligence and/or evidence pertaining to the mother’s own negligence as the proximate legal cause of the unfortunate accident. Eventually on the last day of trial, the trial court reversed its previous ruling which had disallowed the mother’s negligence as a legal proximate cause of the accident to be considered. Or put another way, the trial court reversed its previous ruling which had only allowed the vicarious negligence of the mother to be considered by the jury.
For those who may not be familiar with the various negligence theories, suffice it to say that vicarious liability means the owner of a vehicle may be financially liable for the injuries caused by the driver of the vehicle even though the owner's actions were not the legal proximate cause of the accident. The issue of vicariously liability often arises in the context of employment-employer relationships where the employer, in the performance of his work duties, causes an injury to another, e.g., as the result of an automobile accident. Vicarious liability provides a means to obtain compensation for the injuries caused by, e.g., the employee while performing duties in the scope of his employment. In fact, the plaintiff in Probkevitz was presumably suing Defendant Velda Farms as Dixon’s employer under the legal theory of vicarious liability.
We will briefly note here that vicarious liability has become a less likely means of securing recovery for injuries in certain situations. Readers should also keep in mind that many companies which rely on drivers are often now hiring independent contractors in lieu of having actual company employees as drivers. One “legal” benefit to such companies is that they will generally not be found as being vicariously liable for injuries caused by the negligent driving of an independent contractor. It would seem, however, from a public policy perspective, that companies do at least only hire independent contractors which carry adequate motor vehicle liability insurance and have safe driving records.
The Defendants in Probkevitz understandably wanted to issue of the mother’s own negligence included on the verdict form. Why? Because this jury instruction would have required the jury to consider the issue of the mother’s negligence separate and apart from the negligence of the minor decedent and the Defendant driver. Any resultant award of damages to the decedent’s estate would have been reduced according to the assignment of “fault” to both the mother and the decedent, thereby most likely effectively reducing the amount of damages subsequently paid to the estate. The following examples illustrates this point.
Scenario I. Mother’s ordinary negligence not a jury consideration. Jury determines that the minor decedent was fifty percent (50%) comparatively negligent. Jury awards damages in the amount of five million dollars ($5,000,000.00). The actual damages paid to the plaintiff’s estate is reduced by 50% to reflect minor decedent’s comparative negligence. Final payout is $2.5 million.
Scenario II. Mother’s ordinary negligence is a jury consideration. Jury determines that the minor decedent was 50% negligent and that the mother was 20% negligent. Jury awards damages in the amount of five million dollars ($5,000,000.00). The actual damages paid to the plaintiff’s estate is reduced by 70% to reflect minor decedent’s comparative negligence. Final payout is $1.5 million.
Scenario III. Mother vicariously liable. Jury determines that the minor decedent was 50% negligent and that mother is vicariously liable. The actual damages paid to the plaintiff’s estate is reduced by 50% to reflect minor decedent’s comparative negligence. Final payout is $2.5 million. Same financial outcome as Scenario I.
As it turned out, the Probkevitz jury returned a defense verdict of no negligence whatsoever against the Defendant driver, and the jury never reached the question of the mother’s negligence. The mother’s motion for a new trial was denied and she appealed.
The Defendant-Appellees argued that the introduction of evidence pertaining to the mother’s negligence during the trial constituted harmless error. Citing D’Amario, the Third DCA disagreed and stated that the “negligence, if any [of the mother], was not so closely intertwined with any negligence of Dixon so as to provide a basis for the admission of the [the mother’s] negligence into evidence.”
The D’Amario case involved a products liability case against an automobile manufacturer. The defendant asserted that a third party had actually caused the accident and both parties stipulated to the jury the driver’s level of intoxication. As in Probkevitz, the D’Amario trial court made several conflictive rulings concerning the admission evidence about the driver’s intoxication. Eventually the intoxicated driver’s name was permitted to appear on the verdict form for purposes of apportionment of fault. The jury returned a verdict of no fault on the part of the manufacturer.
The D’Amario trial court did grant the plaintiff’s motion for a new trial. The Second DCA reversed on appeal, but the Florida Supreme Court ruled in favor of the plaintiff and stated that “[a] remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence.” Probkevitz quoting D’Amario at 436. The Florida Supreme Court’s decision in D’Amario was seemingly intended to prevent an allegedly negligent party from attempting to circumvent a finding by the jury of negligence on its part by alleging the negligence of a third party on the basis of some remote condition or conduct. In Probkevitz, that third party was the minor decedent’s mother.
In holding for the Plaintiff, the Probkevitz Court stated that “a new trial is warranted whenever irrelevant, prejudicial evidence is improperly introduced. The evidence of [the mother’s] negligence, as well as a question of her negligence on the verdict form, allowed the jury to base their determination of the Defendant-driver’s negligence on facts and circumstances irrelevant to his fault as a driver. This may have improperly confused the jury, influences their thought process, and prejudiced the plaintiff [the decedent’s estate].”
The Probkevitz trial court also was found to have made incorrect rulings concerning the admission of expert testimony. Generally, an appeals court will give the trial court judge broad discretion in handling expert witness testimony. The Third DCA, however, found that the trial court abused its discretion by refusing a rebuttal expert witness, an accident reconstructionist, to testify on behalf of the plaintiff. “A trial court abuses its discretion when it forbids the presentation of rebuttal evidence that negates the theory of defense.” Probkevitz quoting Gerber v. Iyengar, 725 So. 2d 1181, 1185 (Fla. 3d DCA 1998).
The Probkevitz trial court also had inexplicably allowed the traffic homicide officer who investigated the accident to opine, over the plaintiff’s objection, that “[the minor decedent] had violated the traffic signal.” The Third DCA held that the officer’s opinion constituted prejudicial error and that the plaintiff’s objection should have been sustained. “It is well settled that questions or allusions which suggest that a driver has or has not been charged with a traffic violation in connection with an accident constitute prejudicial error, which in appropriate circumstances will warrant a new trial.” Probkevitz quoting Spanagel v. Love, 585 So. 2d 317 (Fla. 5th DCA 1991). Our emphasis.
In conclusion, we would emphasize that the trial court made numerous “wrong calls” which, taken together, clearly prejudiced the plaintiff. The plaintiff will now have the opportunity to again present her case at a new trial ordered by the Third DCA. It also appears that this case is a comparative negligence case where the new jury will apportion the negligence between the Defendant-driver and the minor decedent presuming that the new jury attributes some degree of fault to the defendant-driver, based on "correctly admitted" evidence.
