Glaab v. Caudill

• Decision Date: 05 June 1970
• Docket Number: No. 69--217,69--217
• Citation: 236 So.2d 180
• Parties: Patricia A. GLAAB, and Clifford L. Glaab, her husband, Appellants, v. Marie B. CAUDILL, and David Z. Caudill, her jusband, Appellees.
• Court: Florida District Court of Appeals

Page 180

236 So.2d 180

Patricia A. GLAAB, and Clifford L. Glaab, her husband, Appellants, v. Marie B. CAUDILL, and David Z. Caudill, her jusband, Appellees.

No. 69--217.

District Court of Appeal of Florida, Second District.

June 5, 1970.

James S. Welch, of Welch & Dooley, Lakeland, for appellants.

D. A. Troiano, of Troiano, Roberts & Fortner, Lakeland, for appellees.

McNULTY, Judge.

In this negligence action, brought under the guest statute, ¹ the plaintiff-wife was a passenger in defendant-husband's car driven by his wife, Marie. At the close of all the evidence at trial the court reserved ruling on defendants' motion for directed verdict and submitted the cause to the jury. The jury returned a verdict in favor of plaintiffs and, thereafter, the court granted the defendant's motion upon which ruling was reserved as aforesaid. Judgment was entered thereon and plaintiffs appeal. We reverse.

In the present posture of the case we must of course consider the evidence in the light most favorable to plaintiffs. In appears that on the day in question, the two wives had purchased a take-out lunch for their families at a fried chicken restaurant and were proceeding home. They were lawfully proceeding at a speed of between 25 and 30 mph in the curb lane of a fourlane thru street, and travelling approximately two feet from the curb. As they passed through an intersection a bag containing six cups of iced tea, which defendant-driver had placed on the seat next to her, spilled over on and behind her. Defendant-driver then took her eyes off the road and both hands off the wheel to retrieve the iced tea. The car veered to the right, travelled approximately thirity-two feet, then jumped the curb and proceeded in a straight line parallel to the curb an additional distance of some sixty-four feet striking a utility pole with the right front fender. Plaintiff-wife testified that when the car struck the curb the driver again grabbed the wheel with both hands but the car 'seemed to pick up speed' until striking the pole at a speed estimated by a police officer to be 30 mph. All told, the entire episode was said to have taken no more than three seconds from the spilling of the tea to impact; and the speed and distance factors mathematically corroborate this. It is further undisputed that there were no skid marks, the weather was bright, clear and dry, there was no evidence that the driver was under the influence of alcohol or drugs and the traffic, if any, was very light. The sole question before us is, of course, whether these facts make out a prima facie showing of gross negligence.

At the outset, we recognize that articulating the concept of gross negligence has always been difficult; and we submit that the root of the difficulty is the fact that, prior to Carraway v. Revell, ² gross negligence was apparently fully equated with 'wilful and wanton' negligence. The bench and bar have therefore been oriented to that equation. Since Carraway, however, it is clear that there is a difference between the two; but the semantic divorce separating them, it seems, has never quite been finalized. We hope our discussion here of gross negligence will at least discourage re-cohabitation.

By definition, it is now rudimentary that gross negligence is that act or omission which a reasonable, prudent man 'would know would probably and most likely', result in an injjry to another; ³ and, from a standpoint of degree, it is clear that gross negligence lies between simple negligence and the 'wilful and wanton' conduct sufficient, if death results, to constitute 'culpable negligence' within the crime of manslaughter. ⁴ But we would agree that such '* * * delimination of 'gross' or 'wanton' negligence from other forms of negligence is neither conceptually satisfactory nor practically simple * * *'; ⁵ so this case affords us an opportunity to suggest what we perceive to be a workable set of criteria to assist in the determination of prima facie gross negligence vel non in automobile guest-passenger cases.

Our analysis of the cases on the subject leads us to conclude that, first of all, gross negligence presupposes the existence of a 'composite' of circumstances which, together, constitute an 'imminent' or 'clear and present' danger amounting to more than normal and usual highway peril. ⁶ These circumstances may involve, (1) speed which is excessive when Coupled with a special hazard such as slippery or impaired road conditions, a sharp curve, a narrow bridge or abutment, hazardous traffic conditions, impaired visibility, or defective tires, brakes or other equipment; ⁷ or (2), absent the question of speed, such circumstances may involved protracted inattention Coupled with one or more of the foregoing special hazards; ⁸ or (3) they may involve intentional or voluntary mis-operation or non-operation of an automobile Coupled with conditions which, in the event of such mis-operation or non-operation, would constitute a 'clear and present' danger; ⁹ or finally, they may involve a clear likelihood of unintentional or involuntary impaired ability or loss of control Coupled with conditions which, upon such impairment or loss of control, would constitute a 'clear and present' danger. ¹⁰ The 'clear and present' danger spoken of, then, may be a 'critical mass' of ordinary hazards, or it may result from such a flagrant act or omission of the driver that normal conditions thereupon become 'imminently' perilous.

Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of. ¹¹

And thirdly, the act or omission complained of must occur in a manner which evinces a 'conscious disregard of consequences', ¹² as distinguished from a 'careless' disregard thereof (as in simple negligence) or from the more extreme 'wilful or wanton' disregard thereof (as in culpable or criminal negligence). ¹³ Stated another way, given chargeable awareness as aforesaid, we equate 'conscious disregard of consequences' with a voluntary act or omission in the face of conditions toward which reasonable prudence requires a Particularly keen alertness or caution when such act or omission is dangerous and well-calculated to result in grave injury. ¹⁴ On this point, we think that the 'probable and most likely' test, as reaffirmed in Carraway v. Revell, Supra, does not contemplate mathematical probability in the sense that an accident or injury is more likely to occur than not. Analysis of subsequent cases bears this out ¹⁵ as does, indeed, the very language of the Carraway court in articulating the rule: '* * * To pout it another way,' it was said, 'if the course of conduct is such that the Likelihood of injury to other persons or property is known by the actor to be imminent or 'clear and present' that negligence is gross, whereas other negligence would be simple negligence.' ¹⁶ (Italics supplied) We construe this to mean that the Chance of injury resulting from the complained of conduct must be more than a real possibility, though not necessarily better than a 50--50 probability. Who, for example, would pass on a blind curve of a two-lane highway if there were but one chance in six of meeting an oncoming car?

Hypothesizing this rationale, it's logical to assume that at some point along the line in a potential gross negligence situation the composite of circumstances or conditions will present a risk of grave injury which a rational person of mature judgment is simply unwilling to assume. On the lower extreme, to illustrate, negotiating a sharp curve at twenty mph, with chargeable awareness that nine hundred ninety-nine out of a thousand cars safely do so, would unquestionably be a minim of risk; and taking such a risk, we can say, would not be negligence at all. As speed would increase, however, so of course would the risk, until a point is reached where an accident or injury, as a consequence of careless inattention, oversight or error in judgment, is foreseeably more than a mere possibility. Imprudence at this point would be a Careless disregard of danger; and it can be said then, we think, that this point would be the predicate for ordinary negligence. But on the high side of a potential gross negligence situation, negotiating that same curve at, say fifty mph, with chargeable awareness that twenty-five per cent of the cars do Not make it at that speed, might well be a risk a person of mature judgment wouldn't consciously and willingly take (except as might be required in an emergency) notwithstanding that he has a better than 50--50 chance of making it. At this point in the spectrum, we therefore think that a driver should be Particularly and keenly alerted to caution in approaching that curve at fifty mph. If regardless of the apparent risk, and regardless of the particular alertness called for, a driver voluntarily and consciously attempts to take that curve at fifty mph a jury might very well think he envinced a 'conscious disregard of consequences' to the extent that he knew such action 'would probably and most likely' result in a serious accident.

In the context of our discussion here, then, relating to the prima facie essentials of gross negligence, the act or omission complained of must be fairly susceptible of the inference that the driver, with chargeable awareness of 'imminent' peril, did not prudently respond to the Particularly keen alertness or caution required by the conditions and risk then apparent. Postulating it otherwise, imprudence in response to circumstances calling for ordinary caution may be simple negligence, but the Same act of imprudence in response to circumstances requiring a greater abundance of caution may well be gross negligence.

We hasten to point out, however, that the mere act or omission complained of, even though the alleged tort-feasor is chargeable with knowledge or awareness of imminent danger, is not always probative of a 'conscious disregard' thereof. This is so...