L.E. Myers Co. v. Young
| Decision Date | 27 February 2015 |
| Docket Number | No. 2D13–6203.,2D13–6203. |
| Citation | 165 So.3d 1 |
| Parties | The L.E. MYERS COMPANY, a foreign profit corporation, Appellant, v. Timothy YOUNG, as Personal Representative of the Estate of Allen Young, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Fort Lauderdale, for Appellant.
Lisha Bowen and Marc Matthews of Matthews Bowen, Tampa, for Appellee.
The L.E. Myers Company (Myers) appeals the final judgment entered against it in this personal injury case arising out of an auto accident. Because the trial court improperly granted a partial summary judgment in favor of Timothy Young, as Personal Representative of the Estate of Allen Young, Deceased (the Estate), and also improperly permitted the jury to consider the issue of punitive damages, we reverse and remand for a new trial.
Myers contracted with Florida Power & Light (FPL) on a project that involved replacing a number of power poles in Manatee County. The contract between Myers and FPL required Myers to install four concrete poles, each approximately eighty-five feet long and each weighing approximately 21,000 pounds, along the shoulder of 15th Street East in Bradenton. The contract specified that Myers was an independent contractor responsible for ensuring that the work was completed to FPL's specifications, including providing the necessary traffic control while the work was in progress.
The scope of the contract between Myers and FPL required Myers to dig a hole for each new pole in a location specifically identified by FPL; transport the pole to the work site on a flatbed trailer; provide a crane at the work site to lift the pole from the flatbed trailer, raise it over the existing transmission and distribution wires, and lower it into the newly dug hole; finalize the setting of the pole; and then, in coordination with FPL, move the transmission and distribution wires from the old pole to the new pole. Myers subcontracted the transportation of the pole to Rountree Transport & Rigging (Rountree), and it subcontracted the crane work to Palm Beach Trucking, LLC, d/b/a Merchant Transport, Inc. (Merchant).
On the day of the accident, while Myers' personnel were digging the hole for the new pole, Merchant's crane operator set up his rig based on his assessment of the site characteristics. Soon thereafter, Ronald Baker, the tractor-trailer driver for Rountree, arrived with the new pole strapped onto the flatbed trailer. The length of the pole was such that it extended off the back of the flatbed trailer by several feet. Myers' personnel directed Baker to park a short distance away from the site while they finished digging the hole.
Once the hole was completed, Myers' personnel directed Baker to bring the pole to the site. To offload the pole, Baker had to park the tractor-trailer in a location dictated strictly by the location of the hole and the location of the crane relative to that hole. Baker backed the tractor-trailer onto the shoulder of 15th Street East and parked where he was directed by Myers' personnel. Baker was able to maneuver the cab of the tractor and the majority of the flatbed trailer fully onto the shoulder of the road, but the outermost left rear tire of the flatbed trailer rested on and slightly over the white line painted on the edge of the road. The concrete pole itself was fully on the shoulder of the road and did not impinge on the roadway in any manner. Baker parked the tractor-trailer, got out, and began helping Myers' personnel unstrap the concrete pole from the flatbed trailer. The crane operator also began to adjust the boom in anticipation of lifting the pole into place.
Myers' safety supervisor, Tommy Byrd, testified that he had placed traffic cones and warning signs on the side of the road on the approach to the work site and that his intent was to stop traffic in both directions on 15th Street East while the crane actually lifted the pole from the flatbed trailer and lowered it into the hole. However, he testified that he did not believe that he needed to divert or stop traffic before that time because although the outermost left rear trailer tire was slightly on the roadway, neither the trailer nor its tires were impeding the flow of traffic.
While the tractor-trailer was parked on the side of the road, Allen Young was driving his Buick southbound on 15th Street East. He stopped approximately seventy-five feet before the Myers' work site, waiting for traffic to clear so that he could turn left into a pawn shop parking lot. Behind him, Roger Nyberg was driving in the same direction, traveling at 91 miles per hour in a 40–mile–per–hour zone and weaving in and out of oncoming traffic. Without braking, Mr. Nyberg slammed into the back of Mr. Young's stopped car. This horrific impact propelled Mr. Young's car forward and spun it around, slamming it by unfortunate happenstance into the end of the concrete pole, which was still atop the flatbed trailer on the shoulder of the road. Mr. Young's car came to rest under the pole with Mr. Young trapped inside. Mr. Young was severely injured, dying from his injuries two years later.
The Estate sued Mr. Nyberg, FPL, Myers, Rountree, Baker, Merchant, and others1 for their alleged negligence in causing the accident. In its answer to the Estate's second amended complaint, Myers raised a number of affirmative defenses, including its alleged entitlement to set-offs for comparative fault, set-offs for the contributory negligence of third parties not under the control or supervision of Myers, and set-offs for the contributory negligence of the codefendants to the action.
The Estate subsequently filed a motion for partial summary judgment as to these three affirmative defenses, arguing that because Myers was engaged in an inherently dangerous activity it was legally responsible for any negligence of its subcontractors and therefore was not entitled to any set-offs for their negligence. Despite finding that there were disputed issues of fact, the trial court granted this partial summary judgment, finding as a matter of law that Myers was engaged in an inherently dangerous activity and so was fully liable for any negligence of its subcontractors.
In addition to this partial summary judgment motion, the Estate also filed a motion seeking leave to assert a claim for punitive damages against Myers. In support of this motion, the Estate argued that Myers' negligence was of a gross and flagrant nature as evidenced by its alleged failure to have a traffic plan in place at the time of the accident, its alleged willful blindness to the allegedly binding Department of Transportation rules concerning traffic regulation at roadside construction sites, and its alleged attempts to cover up its negligence after the accident. The trial court granted the motion and permitted the Estate to file an amended complaint seeking punitive damages.
At trial, the Estate presented one witness who testified that Myers did not have traffic cones or warning signs in place before the accident. The Estate also presented expert testimony that Myers should have implemented a traffic plan that complied with Florida Department of Transportation Index 603, which dictated the placement of warning signs and traffic cones in specific locations, as well as the complete closure of the southbound lane of 15th Street East for approximately 300 feet before the start of the work site, because Myers was working within two feet of the edge of the road. The Estate also introduced a diagram of the accident scene prepared by Myers' safety supervisor Mr. Byrd which depicted warning signs and traffic cones in locations allegedly different from those shown in photographs taken of the accident scene itself.
In contradiction to the Estate's evidence, Mr. Byrd testified that Myers did in fact have both traffic cones and warning signs in place before the accident. He also testified that he had intended to stop traffic in both directions on 15th Street East while the pole was being lifted from the flatbed and lowered into the hole. Myers introduced photographs of the accident scene that clearly showed a traffic cone wedged under Mr. Young's car, which tended to support Mr. Byrd's testimony that traffic cones were in place before the accident. And while Mr. Byrd admitted that the traffic plan he implemented would not have satisfied the requirements of Index 603 if it applied, he specifically testified that the field conditions were such that they did not require the use of an Index 603 plan. Thus, he testified that based on his experience and the field conditions present at the scene, his traffic plan was adequate. Myers also presented testimony from an expert traffic engineer that a traffic plan in compliance with Index 603 was not required under the circumstances present at the actual job site. Further, Myers presented evidence that the diagram prepared by Mr. Byrd was generally accurate.
At the close of evidence, Myers moved for a directed verdict on the Estate's punitive damages claim, arguing that the Estate failed to offer evidence sufficient to meet the high legal standard required for an award of punitive damages. The trial court denied this motion. Ultimately, the jury returned a verdict of $1.2 million in compensatory damages and $9.8 million in punitive damages. The trial court subsequently reduced the compensatory damages award to account for the fault the jury attributed to Mr. Nyberg,2 and it reduced the punitive damages award to $3.6 million pursuant to section 768.73(1)(a), Florida Statutes (2009).3 Myers now appeals the final judgment, raising four issues for review. We find merit in two of these issues, and, as explained below, this determination requires us to reverse the final judgment and remand for a new trial. Based on this disposition, we do not reach the other two issues raised by Myers.4
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...that reckless indifference to the rights of others which is equivalent to an intentional violation of them.'" L.E. Myers Co. v. Young, 165 So. 3d 1, 7 (Fla. Dist. Ct. App. 2015) (quoting Am. Cyanamid Co. v. Roy, 498 So. 2d 859, 861-62 (Fla. 1986). "Evidence of repetition and concealment of ......