Liriano v. Gonzalez

• Decision Date: 29 September 1992
• Docket Number: No. 91-3046,91-3046
• Citation: 605 So.2d 575
• Parties: 17 Fla. L. Week. D2263 Ulyses LIRIANO, Appellant, v. Rodolfo GONZALEZ, Appellee.
• Court: Florida District Court of Appeals

Page 575

605 So.2d 575

17 Fla. L. Week. D2263

Ulyses LIRIANO, Appellant, v. Rodolfo GONZALEZ, Appellee.

No. 91-3046.

District Court of Appeal of Florida,

Third

District.

Sept. 29, 1992.

Roy D. Wasson, Miami, for appellant.

Kubicki, Draper, Gallagher & McGrane and Julio C. Jaramillo, Miami, for appellee.

Before HUBBART, NESBITT and JORGENSON, JJ.

PER CURIAM.

The plaintiff below, Ulyses Liriano, challenges the entry of a final summary judgment in favor of Rodolfo Gonzalez, defendant below, on the issue of liability arising out of a motor vehicle collision. We agree with the plaintiff that evidence was presented which established that the defendant may have been improperly stopped in a through lane of a busy highway, creating a jury question on the issue of liability. Accordingly, we reverse the summary judgment entered in favor of the defendant.

Shariff Butt, not a party to this appeal, testified that on January 24, 1989, he was travelling northbound on State Road 826 (the Palmetto Expressway) in Dade County when a vehicle cut him off, causing him to crash into a three-to-four foot high concrete wall which divides the north and southbound lanes of the highway. When his vehicle came to a stop, it was positioned sideways, with the left front fender in contact with the wall. The rear portion of his vehicle was protruding approximately three feet into the left-hand through lane of traffic. Thereafter, the defendant, travelling northbound in the left-most lane, stopped approximately ten yards behind Mr. Butt's vehicle. Seconds later, the vehicle in which the plaintiff was a passenger struck the rear-end of the defendant's car, allegedly causing the injuries sued upon below.

In Florida, 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 DCA 1985); McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958); see also Gulle v. Boggs, 174 So.2d 26, 28 (Fla.1965); Bellere v. Madsen, 114 So.2d 619, 621 (Fla.1959). This presumption may be rebutted "[w]hen the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed." Gulle, 174 So.2d at 29.

Three general categories of affirmative explanations serve to rebut the presumption of negligence. First, affirmative testimony regarding a mechanical failure will serve to rebut the negligence presumption. Tozier, 469 So.2d at 886; see, e.g., Gulle, 174 So.2d at 29 (affirmative testimony by defendant that his brakes failed was sufficient to overcome the negligence presumption). Second, affirmative testimony of a sudden and unexpected stop or unexpected switching of lanes by the car in front is sufficient evidence to rebut the presumption. Tozier, 469 So.2d at 886; see, e.g., Conda v. Plain, 222 So.2d 417 (Fla.1969) (jury verdict was reinstated after trial judge improperly entered a judgment notwithstanding the verdict where defendant testified that the plaintiff motorcycle driver switched suddenly into defendant's lane while defendant was passing plaintiff). The third category recognized by Florida courts as sufficient to rebut the presumption of negligence is when a vehicle has been illegally, and therefore unexpectedly, stopped. Tozier, 469 So.2d at 887; see, e.g., Railway 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...