Klipper v. Government Employees Ins. Co., 92-02826

• Decision Date: 13 August 1993
• Docket Number: No. 92-02826,92-02826
• Citation: 622 So.2d 1141
• Parties: 18 Fla. L. Week. D1810 Suzanne KLIPPER, Appellant/Cross-Appellee, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation, and Gloria Dennison, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 1141

622 So.2d 1141

18 Fla. L. Week. D1810

Suzanne KLIPPER, Appellant/Cross-Appellee, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation, and Gloria Dennison Appellees/Cross-Appellants.

No. 92-02826.

District Court of Appeal of Florida Second District.

Aug. 13, 1993.

Daniel J. Leeper of Beltz, Ruth & Newman, P.A., St. Petersburg, for appellant/cross-appellee.

Daniel P. Mitchell and Karen O. Wadler of Mitchell and Carter, P.A., Tampa, for appellees/cross-appellants.

THREADGILL, Judge.

Suzanne Klipper appeals a final judgment awarding her damages of $19,032.99, in her action for negligence against Gloria Dennison and in her action for uninsured motorist benefits against Government Employees Insurance Company (GEICO). GEICO cross-appeals on the ground that the jury failed to deduct collateral source benefits from the total award. We reverse and remand for a new trial.

Klipper sued Dennison for injuries sustained when Klipper drove into the rear of Dennison's motor vehicle which was disabled and stopped in the left lane of Interstate 4 between Tampa and Orlando. As Klipper was trying to start her car and turn on the lights after the collision, another car, driven by Daniel Beachy, ran into the rear of Klipper's car. The accident occurred at night on April 22, 1988, on an unlighted section of the highway. Klipper's head and body hit the steering wheel upon both impacts. She suffered injury to her spine, back, and jaw. The accident aggravated a preexisting congenital defect in her spine and back.

The jury returned a verdict finding Klipper 68% negligent and Dennison 32% negligent. The total award was $59,478.12, which consisted of $43,978.12, for past medical expenses, $5,000, for future medical expenses, and $15,000, for pain and suffering. The trial court entered judgment on June 18, 1992, awarding Klipper $19,032.99 (32% of $59,478.12).

Klipper raises three issues on appeal. Two of the issues warrant a new trial; the third issue merely reargues the first two.

As to the first issue, we agree that the trial court committed reversible error by instructing the jury on the presumption of negligence which arises from rear end collisions, even though the presumption had been rebutted. A presumption of negligence attaches to the driver of the rear vehicle in a rear end collision. Tozier v. Jarvis, 469 So.2d 884, 885 (Fla. 4th DCA1985). When the presumption is rebutted, however, the matter goes to the jury without the aid of the presumption, "which has been reduced to the status of a permissible inference or deduction which the jury may or may not draw from the evidence before it." Gulle v. Boggs, 174 So.2d 26, 29 (Fla.1965). The presumption dissipates when evidence is produced that "fairly and reasonably tends to show that the real fact is not as presumed, ..." Id.; Liriano v. Gonzalez, 605 So.2d 575, 576 (Fla. 3d DCA1992).

In this case, GEICO and Dennison moved for a directed verdict on the ground that Klipper had failed to rebut the presumption of negligence attributed to her for the rear end collision. The trial court found that Klipper had successfully rebutted the presumption and denied the motion. The trial court's ruling is supported by substantial competent evidence. The presumption may be successfully rebutted by evidence of mechanical failure, a sudden and unexpected stop, or an illegal and, therefore, unexpected stop by the car in front. Tozier, 469 So.2d at 886; Liriano, 605 So.2d at 576. The evidence, acknowledged by the trial court in denying the motion for directed verdict, suggests that although Dennison's car was disabled, she and her passengers might have been able to prevent the collision. The car contained several adult passengers; however, no one attempted to move the car onto the median or to signal oncoming traffic. The evidence showed that there was at least enough time for the owner of the car to get out, raise the hood, and look underneath it. Dennison testified that she did not attempt to turn on the emergency lights and that the car was otherwise not illuminated.

Notwithstanding that it found evidence to rebut the presumption of negligence, the trial court instructed the jury as follows:

When the lead vehicle is located within its proper lane on the highway, a presumption of negligence is raised as to the driver of the rear vehicle in a rear end collision, and the burden is upon the driver of the rear vehicle to produce evidence which fairly and reasonably tends to show that he or she was not negligent in such a way as to cause the rear end collision.

Although the court did not direct the jury to find negligence based on the presumption, once the presumption disappears an instruction as to its effect is error. See Baker v. Deeks, 176 So.2d 108, 109 (Fla. 2d DCA1965). Reversal is required where jury instruction could have reasonably confused or misled the jury. Cf. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990). The above instruction on the applicable law could have...