Department of Highway Safety and Motor Vehicles v. Saleme, No. 3D06-1033 (Fla. App. 2/21/2007)
| Decision Date | 21 February 2007 |
| Docket Number | No. 3D06-1033.,3D06-1033. |
| Parties | Department of Highway Safety and Motor Vehicles, etc., Appellant, v. Faryd A. Saleme, Appellee. |
| Court | Florida District Court of Appeals |
Andrew J. Anthony and Bradley A. Silverman, for appellant.
Pape & Chandler and Marc A. Chandler, for appellee.
Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
Faryd A. Saleme ("Saleme") and Trooper Lozano of the Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol ("FHP"), were involved in a motor vehicle accident on SR 826 wherein Saleme ran into the rear end of Trooper Lozano's patrol car. Saleme filed a complaint against the FHP alleging that Trooper Lozano was negligent in the operation of his patrol car. The jury ultimately found that both Trooper Lozano and Saleme were negligent and that the negligence of each was a contributing cause of the accident, assigning 85% of the fault to Saleme and 15% of the fault to Trooper Lozano, resulting in a final judgment awarding Saleme $81,250.44, which FHP now appeals. FHP claims that the trial court erred in denying its motion for a directed verdict and its post-trial motion for judgment notwithstanding the verdict ("JNOV"). We agree and, therefore, reverse and remand with directions to the trial court to enter a final judgment in favor of the FHP.
Trooper Lozano had stationed his patrol car on the right hand shoulder of SR 826 facing southbound approximately 589 feet south of the crest of the Sunset Drive overpass in an attempt to catch speeding motorcyclists who were headed to Fuddrucker's in south Miami-Dade. Trooper Lozano explained that on Thursday nights, motorcyclists meet at Fuddrucker's, and that they often drive at high rates of speed and recklessly on that particular section of SR 826, which ends at US 1 near Fuddrucker's. Saleme, who had ridden on this roadway approximately a thousand times and knew it well, was riding his motorcycle in a triangle formation with two companions, who were also on their motorcycles. Saleme rode in front with Rene Bermudes ("Bermudes") and another friend, ("Frank"), riding behind him. All three were speeding. Saleme testified that he was initially traveling at a speed of at least 60 to 65 mph, but admitted that he had told the accident investigator on the night of the accident that he was initially traveling between 65 and 70 mph. The speed limit on SR 826 is 55 mph.
Prior to reaching the hill, two other motorcyclists, a man on a yellow Suzuki and another individual, approached Saleme, stayed with him momentarily, and then sped off. Saleme, who was already traveling at 65 to 70 mph when he was approached by the man on the yellow Suzuki, sped up to chase the Suzuki. Trooper Lozano testified that he clocked the Suzuki at well over 100 mph, but that he could not remember the exact speed it was traveling when it passed his patrol car, which was parked 589 feet from the top of the hill. Bermudes testified that the driver on the yellow Suzuki was traveling at between 100 and 120 mph.
Upon seeing the speeding motorcyclists (the man on the yellow Suzuki and a second motorcyclist who was not Saleme), Trooper Lozano began to pursue them and entered the roadway from the right shoulder. Trooper Lozano testified that there had been a break in the traffic when the Suzuki passed him. Trooper Lozano put his car in gear, turned on his lights, checked to make sure no traffic was coming, and pulled out into the right hand lane, and while accelerating, crossed into the center and then into the left lane, all the while looking to his left to make sure no other traffic was coming. As Trooper Lozano was making his way onto and across SR 826, Saleme came up over the hill, saw the trooper in his lane of travel, applied his brakes, and skid 156 feet before hitting the back of the trooper's patrol car.
Sergeant Marisela Fernandez, a traffic homicide investigator trained in civil engineering and accident reconstruction, investigated the accident, and testified that based upon her analysis, Saleme was driving between 80 and 85 mph when he first saw Trooper Lozano. It was undisputed that Trooper Lozano was traveling at approximately 50 mph and was accelerating when he was struck by Saleme. Bermudes, who was approximately three car lengths behind Saleme before Saleme accelerated to chase the man on the yellow Suzuki, testified that he was approximately a half of a football field (150 feet) behind Saleme when Saleme hit the patrol car. Neither Bermudes nor Frank were involved in the accident.
The accident occurred 789 feet south of the crest of the hill, which means Trooper Lozano traveled 200 feet upon entering onto the roadway.
Saleme testified that when he first saw Trooper Lozano, Trooper Lozano was already in the left lane, which is the same lane Saleme was traveling in. He did not see Trooper Lozano as Trooper Lozano made his way across SR 826 and he could not testify how long Trooper Lozano was in the left lane before he hit the trooper's patrol car. He did testify, however, that upon seeing the trooper's car in his lane, he applied his brakes "hard."
Sergeant Fernandez testified that it takes two-and-a-half seconds from the time an individual perceives the danger to react to it. Sergeant Fernandez further testified that at 80 mph (Saleme was traveling 80 to 85 mph when he saw the trooper), Saleme would travel 117 feet per second. Thus, Saleme traveled at least 292 feet from the time he first saw Trooper Lozano in his lane of travel until he applied his brakes. After applying his brakes, he skid 156 feet and then hit the patrol car. He therefore, traveled at least 448 feet from the time he first saw the trooper in the left lane, to the time when he made contact with the patrol car, a distance of one-and-a-half football fields. These facts are critical because they demonstrate that when Trooper Lozano pulled into the far left lane, the nearest motorist, which was Saleme, was at least 292 feet or 100 yards, the distance of a football field, behind him. The evidence reflects that Saleme began accelerating as he traveled up the hill, and within two to three seconds after traveling over the top of the hill, saw the patrol car in his lane, tried to slow down, but was going too fast to avoid hitting the trooper's car.
In Florida, there is a rebuttable presumption that the negligence of the rear driver in a rear-end collision was the sole proximate cause of the accident. Clampitt v. D.J. Spencer Sales, 786 So. 2d 570 (Fla. 2001). This presumption may be rebutted "[w]hen the defendant produces evidence which fairly and reasonably tends to show that the rear fact is not as presumed," that the rear-end collision was not the result of the rear driver's negligence. Gulle v. Boggs, 174 So. 2d 26, 29 (Fla. 1965). The courts, however, have recognized three specific fact patterns which may rebut this presumption:
(1) affirmative testimony regarding a mechanical failure, see, e.g., Gulle, 174 So. 2d at 29 ();
(2) affirmative testimony of a sudden and unexpected stop or unexpected lane change by the car in front, see, e.g., Conda v. Plain, 222 So. 2d 417 (Fla. 1969)( that testimony by the defendant that the plaintiff suddenly switched into the defendant's lane while the defendant was passing the plaintiff was sufficient to rebut the presumption); and
(3) when a vehicle has been illegally and, therefore, unexpectedly stopped, see, e.g., Ry. Express Agency, Inc. v. Garland, 269 So. 2d 708 (Fla. 1st DCA 1972), cert. denied, 275 So. 2d 14 (Fla. 1973)(presumption rebutted where defendant driver of a bus improperly stopped on an expressway to pick up fallen debris); Ben's Seltzer, Inc. v. Markey, 254 So. 2d 377 (Fla. 3d DCA 1971), cert. denied, 261 So. 2d 176 (Fla. 1972)(presumption rebutted where plaintiff presented evidence that defendant was improperly stopped on a bridge).
See Liriano v. Gonzalez, 605 So. 2d 575, 576 (Fla. 3d DCA 1992).
The FHP asserts that the trial court erred in denying its motion for a directed verdict and its post-trial motion for a JNOV because Saleme failed to present sufficient evidence to rebut the presumption of negligence that attaches to a rear motorist in a rear-end collision. We agree as (1) there is absolutely no evidence in the record of any mechanical failure, that Trooper Lozano made a sudden stop or an unexpected lane change, or that Trooper Lozano was illegally stopped on the roadway; (2) Saleme failed to present any evidence that if there had been a sudden lane change, it occurred at a time and place where it could not reasonably have been expected; and (3) the evidence conclusively establishes that the accident occurred solely as a result of Saleme's negligence.
(1) No evidence of a sudden lane change
Saleme's theory of the case was that Trooper Lozano suddenly swerved into Saleme's lane of travel. Despite the dissent's assertion to the contrary there was however, no evidence presented to support this theory. Trooper Lozano testified that when he pulled onto the roadway, there had been a break in the traffic, he turned to his left to make sure that no other traffic was coming, and he continued to look to his left as he crossed into the middle and then into the left lane. Trooper Lozano testified that he was completely in the left lane and had been traveling in that lane for several seconds prior to the impact. The physical evidence supports the troopers's testimony, as Saleme's motorcycle struck near the center of the rear of the patrol car.1 Trooper Lozano was traveling within the speed limit. Trooper Lozano did not testify that he made a sudden lane change.
Saleme, who...
To continue reading
Request your trial