Dayes v. Werner Enters., Inc.

• Decision Date: 27 January 2021
• Docket Number: No. 3D19-1920,3D19-1920
• Parties: Gail Johnson DAYES, etc., Appellant, v. WERNER ENTERPRISES, INC., et al., Appellees.
• Court: Florida District Court of Appeals

314 So.3d 718

Gail Johnson DAYES, etc., Appellant,

v.WERNER ENTERPRISES, INC., et al., Appellees.

No. 3D19-1920

District Court of Appeal of Florida, Third District.

Opinion filed January 27, 2021

Falk, Waas, Hernandez & Solomon, P.A., and Glenn P. Falk, Fort Lauderdale; Russo Appellate Firm, P.A., and Elizabeth K. Russo, Miami, and Paulo R. Lima, for appellant.

The Brownlee Law Firm, P.A., and Michael M. Brownlee (Orlando), for appellees.

Before LOGUE, SCALES and LINDSEY, JJ.

LOGUE, J.

In this wrongful death case, Gail Johnson Dayes, the personal representative of the estate of her husband Harold Dayes, appeals a final judgment entered after a jury trial. Dayes was killed at work when a tractor-trailer backed over him. Mrs. Dayes sued Werner Enterprises, Inc., the owner of the tractor-trailer, and its employee, Vincent Minott, the driver (hereinafter, collectively "the Defendants"). Among other things, Mrs. Dayes contends the trial court erred in allowing the Defendants to read to the jury the deposition of a police detective who testified that another officer told him Dayes had an earbud in his ear when lying on the ground after the accident. We reverse because this testimony constituted inadmissible hearsay and the Defendants, as the beneficiaries of the error, have not met their high burden of establishing "there is no reasonable possibility that the error contributed to the verdict." Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256–57 (Fla. 2014).

FACTS

The accident happened one morning around eight at a Coca-Cola distribution center in Broward County, Florida in 2017. Harold Dayes was a 63-year-old security guard working for a third-party contractor named Securitas Security Services USA. He was tasked with logging tractor-trailers out of the distribution center. Dayes would check the load of a trailer and affix a seal to its doors before the trailer left the property. He had been working this job for approximately one month before his death. The tractor-trailer that killed him was owned by another third-party contractor named Werner Enterprises, Inc. and driven by its employee, Vincent Minott.

The trial got off to a rocky start in voir dire when the Defendants asked a juror "Could you imagine how you'd feel if somebody told you [that] you killed someone and you don't think it's your fault? Do you think there's pain and suffering on both sides of this equation?" The trial court sustained an objection but denied a mistrial. The Defendants, however, returned to this theme in their opening ("Mr. Minott ... lives this day every day. Particularly on Sundays because he remembers having conversations with Mr. Dayes about watching football ... And so it particularly hits him on Sundays .... We're going to ask you to avoid making this tragedy worse ...."). The trial court again denied a mistrial.

During the trial, it was undisputed that in the moments before the accident, Minott drove a tractor-trailer out of a warehouse bay. He realized the truck was empty, got out of the cab, and showed Dayes the paperwork and the number on his trailer. They agreed the empty trailer had to be returned to the warehouse. At this point, the parties presented competing narratives. The Plaintiff contended that Minott walked quickly back to the cab, rejected the longer, but safer option of driving forward to return to the bay, and negligently backed up without taking basic precautions like first locating Dayes and ensuring he was not behind the trailer, even if this involved getting out of the truck again.

The Defendants contended that Minott told Dayes he intended to return the empty tractor-trailer by backing up. Minott walked back to the cab, climbed in, carefully checked his mirrors, could reasonably assume Dayes had gone back into his office, had no reason to think Dayes would have moved to the blind spot behind the trailer, twice honked his horn, and slowly backed up at a rate that allowed Dayes ample latitude to step clear if Dayes had been paying attention.

Much of the Plaintiff's case was devoted to attacking alleged inconsistencies in the driver's version of events. One potential inconsistency concerned whether Minott actually sounded his horn. For example, the one independent witness to the accident did not hear the driver sound the truck horn; that witness, however, was using a loud pressure cleaner at the time. Minott also said that at one point he honked the truck's quieter "city horn" and, at another point, the truck's louder "air horn." The Plaintiff's attacks on Minott's testimony were sufficiently persistent that the trial court allowed the Defendants to bolster Minott's testimony with a prior consistent statement, to which the Plaintiff objected.

Given the attacks on Minott's testimony, the question of why, if Minott had sounded his horn, Dayes had ignored it, became a feature of the trial. For example, the Defendants set up this question for the jury by asking their own driver, Minott, whether he could understand why Dayes ignored the horn:

Q. Can you think of any reason, based on how long you've been around tractor trailers, why someone that was anywhere near your vehicle wouldn't have heard your air horns?

A. I don't know how -- how he didn't hear. That's the reason why I honk it twice.

After posing the question, the Defendants answered it: Dayes was wearing at least one earbud. Over the Plaintiff's hearsay objection, the trial court allowed the Defendants to read a portion of the deposition of Detective Morales who conducted a traffic homicide investigation. In the disputed testimony, Detective Morales testified that another officer, Sergeant Franks, told him that Dayes had been wearing at least one earbud as he lay dying on the ground after the accident:

Q. All right. Were you able to determine whether the deceased was using any equipment, like a headset or a cell phone or anything like that?

A. There is a -- there is a comment in my report. Sergeant Franks advised me he did have -- there was a statement in my report. You can, I guess, get it from Sergeant Franks -- did advice that he was ... he did have a Bluetooth-type headset. He described it as earbuds which connect behind. And he advised me there was at least one in the ear at the time when he was trying to administer first aid. He could not tell if the other one was in or out. He could not recall.

The Defendants' expert testified at length regarding his opinion that the use of earbuds by Dayes explained how Minott could sound the horn but Dayes not heed it:

Q. Now, as a part of your analysis, have you considered the impact that wearing earbuds would have had on Mr. Dayes's ability to hear the auditory cues that were going on around him before the backing maneuvers had begun?

A. Yes, sir.

Q. And what opinion have you developed with respect to the use of air bud -- earbuds, I'm sorry.

A. So if Mr. Dayes was wearing an earbud, it would reduce the amount of sound transmitted through that one ear. So we know that earbuds were recorded as part of his belongings and were reported as something that he carried with him. However, we don't know what those earbuds are, but if they were being used, then within that ear, it would reduce the amount of sound transmitted.

Q. Okay. And would that be true if he had them in both ears or one ear? Help me understand that a little bit.

A. So any ear that had an earbud within it, that ear would experience a reduction in the amount of sound transmitted.

Q. If we assume for a moment that Mr. Dayes had an earbud in only one ear, how would that impact -- and the other ear was empty, how would that impact his ability to hear the various auditory cues going on before this vehicle began its backing maneuver?

A. So that would reduce the sound in the one ear. It would not affect the sound transmission through the other unplugged ear.

Q. All right. And if he was wearing earbuds in both ears, how would that impact his ability to hear the auditory cues, assuming he wasn't playing any music or had any sort of input through those earbuds?

A. Assuming that both ears had earbuds in, it would just be a global reduction in the sound transmission. So everything would be softened.

Q. And if he had some sort of auditory -- either a podcast or music playing through these earbuds, how would that impact his ability to hear the auditory cues?

A. So in addition to the ... dampening or reduction of sound transmission from the external or sounds produced by the truck, there would also be masking created by anything being played on those -- through the earbuds. So it would be masking or interference that would help to hinder or provide a hindrance to his ability to hear those sounds.

The Defendants' expert even explained how Minott's testimony that he and Dayes had a conversation could be reconciled with Dayes having an earbud in his ear:

Q. Now, can people be wearing earbuds, take them out to have a conversation with somebody, and then put them back in when they go -- when they're done having a conversation? ... Is that something that you've experienced as a human factors scientist?

A. Yes.

The jury's interest in this issue is evident by the fact that it asked the expert a question about the horn.¹

Whether Minott sounded his horn was also a feature of the closing arguments. The Plaintiff, for its part, accused Minott of "telling an inconsistent story" about sounding his horn. In response, the Defendants made the earbuds a theme in their closing argument. After noting Dayes ignored the air horn, the Defendants asked rhetorically, "[Why] did he not hear it? Why? Because of the earbud? Who knows?" Later, again noting Dayes did not move out of the way of the truck even though Minott testified he honked his air horn, "How did an air horn not prompt that, unless he's got an earbud? I don't know. That's for you all to decide."

On the issue of liability and proximate cause, the first two questions on the verdict form were: (1) "Was there negligence on the part of Vincent Minott which was a...