Bulkmatic Transport Co. v. Taylor

• Decision Date: 26 August 2003
• Docket Number: No. 1D02-1158.,1D02-1158.
• Citation: 860 So.2d 436
• Parties: BULKMATIC TRANSPORT COMPANY, et al., Appellants, v. Darryl C. TAYLOR, Appellee.
• Court: Florida District Court of Appeals

860 So.2d 436

BULKMATIC TRANSPORT COMPANY, et al., Appellants, v. Darryl C. TAYLOR, Appellee.

No. 1D02-1158.

District Court of Appeal of Florida, First District.

August 26, 2003.

David B. Shelton, J. Scott Kirk, and Christopher T. Hill, of Rumberger, Kirk & Caldwell, Orlando, for Appellants.

P. Scott Russell, IV, of Dunlap and Russell, P.A., Jacksonville; Lawrence J. Najem, of Ossi, Butler, Najem & Rosario, P.A., Jacksonville, for Appellee.

LEWIS, J.

Appellants, Bulkmatic Transport Company ("Bulkmatic") and Stephen Farnham, appeal the trial court's order granting appellee, Darryl C. Taylor, a new trial. On appeal, appellants contend that the trial court erred in granting appellee a new trial because the four grounds relied upon by the trial court, both individually and in combination with one another, did not warrant such a result. We agree and, therefore, reverse the trial court's new trial order and remand with directions to reinstate the jury's verdict.

As a result of an accident that occurred on Old Kings Road in Duval County between appellee and Farnham, an employee of Bulkmatic and the driver of Bulkmatic's tractor-trailer, appellee brought suit against appellants. The accident occurred before the tractor-trailer reached the two weight-restricted bridges on Old Kings Road, which has a thirty-five-mile-an-hour speed limit. In Count I of his complaint, appellee asserted that Bulkmatic was vicariously liable for Farnham's negligent operation of the tractor-trailer. In Count II, appellee asserted that Bulkmatic was liable for the negligent hiring, training, and supervision of Farnham. In Count III, appellee asserted that Farnham was negligent in his operation of the tractor-trailer.

Prior to trial, appellee filed a motion in limine in which he sought an order prohibiting appellants from making "[a]ny challenge to opposing counsel to tell the jury why certain witnesses did not testify, or any reference to what uncalled witnesses would have testified to if called," which the trial court granted. Appellee also filed a Motion for Entry of Default Judgment or Other Appropriate Sanctions for Spoliation of Evidence in which appellee alleged that, while he had repeatedly requested "any on board computer data" from the tractor-trailer, appellants had failed to produce any such evidence. Specifically, appellee sought any data from the tractor-trailer's electronic control module, which is otherwise known as the "black box." During the hearing on the latter motion, appellee's counsel stated, "At this juncture, we will concede that the [appellee] can probably go forward with a prima facie case so that... the willful destruction of this evidence will not in and of itself—I'm not going to argue that you should strike the pleading of the [appellants] at this juncture." Appellee's counsel contended that "a rebuttable presumption of negligence shifting the burden to the [appellants] should be held and a jury instruction should be read to the jury," that appellants' comparative negligence defense should be stricken, and that appellants' accident reconstructionist, Stephen Chewning, should be stricken from appellants' witness list. Following both counsels' arguments, the trial court found that Chewning's failure to preserve the black box data exhibited willfulness and bad faith that prejudiced appellee. Because the trial court determined that striking Chewning would be inappropriate under the circumstances and would be "overkill," the court concluded that the appropriate sanction would be to strike appellants' comparative negligence defense. The trial court ruled that it would allow appellee to raise the issue of the black box during the trial and the fact that any data contained therein was not preserved.

Prior to voir dire, appellee's counsel explained to the trial court that Farnham had a multi-year history, beginning in 1995, of not paying attention to Bulkmatic's policies and procedures and that, two weeks prior to the accident at issue, Marty Gribben, Farnham's supervisor, warned Farnham about driving on Old Kings Road with a heavy load. Appellee's counsel also informed the trial court that Gribben had testified in his deposition that Farnham always took shortcuts and that he had a history of driving fast around the terminal. While the trial court initially ruled that it would generally allow this type of testimony, the trial court subsequently ruled that it was only going to allow the one warning given to Farnham by Gribben two weeks prior to the accident. According to the trial court, it believed that its earlier ruling was overbroad.

During voir dire, appellee's counsel informed the prospective jurors that they were going to be instructed that when a professional driver in the employment of his or her company causes harm, the driver's employer would be responsible for that harm. In response, prospective juror Yawn stated that, while he thought that a company is responsible for its employees, he did not know if that is 100% responsibility; it depended upon the situation as to who it was and how much responsibility it was. Prospective juror Vanskoi stated that she did not think that it was fair for a company to be held 100% accountable for the actions of its employees and that she would be uncomfortable applying such a rule. Appellee's counsel then asked the venire whether anyone thought that there had to be some limit on human damages even if he or she was convinced that someone had sustained total damages of two million dollars. Prospective juror Banana stated that it would bother her because of an increase in her insurance rates. Vanskoi stated that her concern was "whether it's more subjective than objective damages." When questioned by appellee's counsel as to whether anyone else had a concern with the subjective versus the objective, prospective juror Riggins replied, "I'd have to go along with that."

In response to appellee's counsel's question as to whether they could apply an analytical framework without limitation to fix what can be fixed and balance what cannot be fixed even if it results in a very large number, Vanskoi stated that she could not do so. Riggins responded, "That's tough for me because I don't know the facts of the case. I don't know what you're going to be telling us. And it would have to be a pretty convincing argument." When specifically asked by appellee's counsel if she would have a problem with rendering a verdict in the amount of one dollar in favor of appellee if she found that he had sustained that amount in damages, Riggins replied, "No, I would not." When asked if she would have a problem with rendering a verdict in the amount of two million dollars if she believed the evidence established two million dollars or more in damages, Riggins responded, "Perhaps." Appellee's counsel then stated, "So we don't actually start out completely on an even playing field, at least in that respect?" Riggins replied, "There are a whole bunch of variables that play typically in one way or another; it's just difficult for me to sit here and tell you that I would have no problem doing that because I don't know that." Prospective juror McDonald also stated that he would have a problem with being responsible for saying something of that magnitude and that he had a problem with holding an employer responsible for the acts of its employees. When appellants' counsel subsequently asked the venire if everyone would be willing to give an award, be it one hundred thousand dollars or three million dollars, if the evidence justified it, the prospective jurors nodded affirmatively. When asked if anyone would be hesitant in giving appellee what he deserved, no prospective juror responded.

Thereafter, appellee's counsel made his challenges for cause. The trial court granted counsel's first challenge for cause as to a doctor who had stated that she had difficulty with the greater weight of the evidence rationale. Counsel successfully challenged McDonald for cause on the ground that he had a problem with large damage awards and with holding an employer responsible for the acts of its employees. Counsel also successfully challenged Banana for cause based upon her statement about her insurance rates. As to Vanskoi, counsel successfully challenged her for cause as she had averred that she had a problem holding an employer liable for its employees' acts and with awarding a large verdict.

With regard to appellee's challenge as to Riggins for cause, counsel contended that, when asked whether the two sides would be starting out on an even playing field, Riggins candidly said no. The court responded that it did not have Riggins saying that in its notes and that, short of that, it thought that she had said that it would be a tough job but that she could do it. After setting forth that the court reporter would attempt to find Riggins' statement and after a brief recess, the trial court denied the challenge as to Riggins for cause. The court also denied two challenges for cause as to Yawn and prospective juror White.

When asked if he wished to exercise any peremptory challenges, appellee's counsel renewed his challenge as to Riggins for cause, which the court again denied. Counsel then utilized one of his peremptory challenges on Riggins, while once again renewing his challenge for cause. According to counsel, he needed to state for record purposes whom he would have used his peremptory challenges on had he received his challenges for cause. Counsel continued that he would have utilized one challenge to remove Yawn and another to remove prospective juror Solano, whose husband had recently passed away and whose son had once driven trucks as his occupation.

During the trial, appellee called two eyewitnesses who testified that Farnham's tractor-trailer crossed the center line and collided with appellee's vehicle. One of these witnesses, Timothy Smith, a UPS driver, testified that he was driving at approximately...