Emmer v. Perez

• Decision Date: 17 May 2000
• Docket Number: No. 3D99-1290.,3D99-1290.
• Citation: 757 So.2d 612
• Parties: Faye Levine EMMER and Norman Emmer, Appellants, v. Marta PEREZ, Dariel Perez, and Marta Perez, as legal guardian of Dariel Perez, Appellees.
• Court: Florida District Court of Appeals

757 So.2d 612

Faye Levine EMMER and Norman Emmer, Appellants, v. Marta PEREZ, Dariel Perez, and Marta Perez, as legal guardian of Dariel Perez, Appellees.

No. 3D99-1290.

District Court of Appeal of Florida, Third District.

May 17, 2000.

Ribler, Gilmartin & Sanchez; Barranco, Kircher, Vogelsang & Boldt, P.A. and Kimberly L. Boldt, Coconut Grove, for appellants.

Michael I. Libman, Miami, for appellees.

Before COPE, GREEN and SORONDO, JJ.

GREEN, J.

Appellants were the defendants in an action filed by the appellees for injuries allegedly sustained in an automobile accident. In this action, the appellants maintained that the appellee's comparative negligence was a contributing cause of the accident. The trial was bifurcated on the issues of liability and damages. At the close of the evidence on the liability portion of the trial, the court directed a verdict in favor of the appellees finding appellant Faye Levine Emmer's negligence to be the sole cause of the accident. Thereafter, the Emmers moved for a new trial claiming that the entry of the directed verdict in favor of the appellees was error because they had produced sufficient evidence for the jury to consider Marta Perez's comparative negligence. The trial court denied the appellants' motion.

This was a relatively simple case. The evidence taken in the light most favorable to the appellants, with all conflicts and reasonable inferences construed in their favor, revealed that on November 15, 1993, at approximately 3:30 P.M., Faye Levine Emmer was traveling eastbound on Flagler relatively heavy but there were no inclement weather conditions and the streets were dry. When Ms. Emmer approached the intersection at 40th Avenue, she entered the designated left turn lane so that she could make a left turn. There are no traffic control devices or stop signs at this intersection. At the time that Ms. Emmer was entering the left turn lane at the intersection, Ms. Perez was driving her car westbound on Flagler Street. There are only two lanes for westbound traffic. The evidence showed that Ms. Perez was traveling below the posted speed limit in the right hand lane, closest to the sidewalk, and that there were other cars being driven next to her in the left lane.

As Ms. Emmer approached the intersection at 40th Avenue, she came to a complete stop in the left turn lane to permit the westbound traffic to pass and clear before making her left turn. At some point, a car traveling westbound in the left lane stopped and its driver motioned for Ms. Emmer to make her left turn. At trial, Ms. Emmer acknowledged that the unidentified motorist who summoned her to turn was not a police officer and she also admitted that she could not see the westbound traffic traveling in the remaining right lane.¹ She thus acknowledged that no one in the remaining right lane similarly stopped and yielded the right of way for her to turn left.² When Ms. Emmer proceeded to make her left turn she never stopped to check the status of traffic in the westbound right lane.³ As she entered the westbound right lane, while making her left turn, her car was struck by Ms. Perez. According to Ms. Perez's testimony, she did not see Ms. Emmer's car prior to the accident because the car in the left lane had blocked her view.

At the close of the evidence, the trial court directed a verdict in favor of Ms. Perez on the issue of liability. The trial court found, among other things, that Ms. Perez indisputably had the right of way and that Ms. Emmer admitted that she did not stop to check the traffic in Ms. Perez's lane of oncoming traffic before completing her left turn. Essentially, Ms. Emmer made her left turn across two lanes of westbound traffic in sole reliance upon the direction and permission of a motorist in only one of those lanes, who was not a law enforcement official. Moreover, there is no record evidence to show that Ms. Perez knew or had any reason to know that the driver to her left had decided to yield the right of way to Ms. Emmer.

We entirely agree with the trial court's conclusion that in the absence of any evidence of negligence on the part of Ms. Perez, the entry of a directed verdict on the issue of liability in her favor was appropriate. See Stirling v. Sapp, 229 So.2d 850 (Fla.1969)

(motions for judgment notwithstanding verdict, like motions for directed verdict are authorized when there is no evidence or reasonable inference to support the opposing position); see also, e.g., Hendricks v. Dailey, 208 So.2d 101, 103 (Fla.1968) (concluding that "[a] verdict should not...