Mastec N. Am., Inc. v. Morakis

• Decision Date: 02 October 2019
• Docket Number: No. 4D18-1321,4D18-1321
• Citation: 288 So.3d 685
• Parties: MASTEC NORTH AMERICA, INC. and Robert W. Dumas, Appellants, v. Kathleen MORAKIS, as Limited Guardian of the Person and Property of Manuel Perez Garcia, Incapacitated, Appellee.
• Court: Florida District Court of Appeals

288 So.3d 685

MASTEC NORTH AMERICA, INC. and Robert W. Dumas, Appellants,

v.Kathleen MORAKIS, as Limited Guardian of the Person and Property of Manuel Perez Garcia, Incapacitated, Appellee.

No. 4D18-1321

District Court of Appeal of Florida, Fourth District.

[October 2, 2019]

Alina Alonso Rodriguez and Wendy F. Lumish of Bowman and Brooke LLP, Miami; and Brian D. Equi and Francis E. Pierce, IV of Goldberg Segalla, LLP, Orlando, for appellants.

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach; Steven Kuveikis of Steven Kuveikis, P.A., Jupiter; and John J. Wilke of The Law Office of John J. Wilke, Boca Raton, for appellee.

Ciklin, J.

A young man traveling on a bicycle ("the plaintiff") was struck from behind by a van and suffered significant injuries. His guardian brought a negligence suit against the driver of the van and the driver's employer ("the defendants"). Based on a Florida statute barring relief to a plaintiff whose alcohol impairment causes him to be more than 50% at fault for his injuries, the defense introduced evidence of the plaintiff's impairment and sought a jury instruction concerning this defense. Nonetheless, the trial court directed a verdict in the plaintiff's favor on the statutory defense and instructed the jury that the plaintiff's impairment was not a cause of the accident or the plaintiff's injuries. We find the trial court erred and we reverse and remand for a new trial.

The evidence at trial revealed the following. One morning, Robert Dumas, a driver for MasTec of North America ("the driver"), left his house shortly before 6:00 a.m. to begin his commute to work. He was driving a company van and because it was dark out, had engaged its low beam lights. The driver was traveling north on Military Trail. There was a sidewalk next to the road. The driver shifted from the center lane to the right-hand lane and traveled another 200 yards. Suddenly, he saw a bicycle on the road in front of his van toward the passenger side. The plaintiff was traveling on the bicycle in a northward direction. The driver did not see any reflectors on the bicycle. The driver swerved to the left to avoid the plaintiff but to no avail. The right front headlight of the van struck the rear tire of the bicycle, and the man suffered profound injuries.

An investigation revealed that the plaintiff was wearing non-reflective clothing as well as dark cowboy boots with a 1¼ inch heel that would have covered the bicycle pedals' reflectors. The bicycle did not have a headlight or taillight. The bicycle had a rear reflector light but there was conflicting testimony as to whether it was properly positioned. The plaintiff had a blood alcohol concentration ("BAC") of .23. He was traveling on Military Trail, a major six-lane road, about four feet from the edge of the road. The street light "across from where the crash occurred" was "not functioning properly," and there were "prolonged period[s] of time" when the light was not on.

One of the defense experts testified that the operation of a bicycle requires coordination. Bicyclists must "divide their attention between physical and mental tasks." Like drivers of automobiles, bicyclists must also "check ... everywhere for lane positions, also to see if there's anything else that could be coming into your path of travel."

A defense expert testified regarding the correlation between an increased BAC and impairment of normal faculties such as the ability to walk and talk, process information, and perceive, appreciate, and react to emergency situations. He described the signs of impairment associated with different ranges of BAC. BACs below .08 would lower inhibitions and negatively affect motor performance. Persons with less alcohol tolerance might exhibit slurred speech and staggering. Reaction time is delayed. With BACs between .08 and .19, these signs would be exhibited "in a greater degree." Loss of judgment would increase, and the ability to operate a bicycle would be negatively impacted. Higher BACs, such as the plaintiff's, would make it even "more difficult to operate a bicycle." A person with a .23 BAC could exhibit confusion, disorientation, dizziness, distorted vision, and lack of coordination. The toxicologist further testified that lowered inhibitions caused by an increased BAC can result in risky behavior. He opined that based on the plaintiff's BAC level, his balance, judgment, decision making, perceptions, and reaction time would have been affected and he likely would have experienced dizziness and lack of coordination.

At the close of evidence, the trial court granted the plaintiff's motion for directed verdict on the statutory affirmative defense related to the plaintiff's impairment. But the court confirmed that defense counsel could still assert comparative fault: "[T]here's a lot to argue about comparative fault ... There was no light, the dark clothing, the position of the ... bicycle, all of those are still fair game in comparative fault." The court made it clear, however, that defense counsel could not argue "that any of that occurred or happened due to" the plaintiff's intoxication, finding that there was "no evidence to show that the intoxication led to him wearing the dark clothing, not having the light on the back of the bike."

Over defense objection, the jury was specifically instructed that the plaintiff's "alcohol consumption did not cause or contribute to the occurrence of this accident or [the plaintiff's] injuries." But it was also instructed that it must decide "whether [the plaintiff] was negligent and, if so, whether that negligence was a contributing legal cause of his injuries and damages."

The jury returned a verdict for the plaintiff but found he was 40% at fault.

On appeal, the defendants argue that there was evidence that the plaintiff's BAC level contributed to the accident, and thus the trial court erred in directing a verdict on their statutory defense. They point to the evidence of the plaintiff's comparative negligence and the expert witnesses' testimony as to what faculties are necessary to operate a bicycle and how these faculties and others would be affected by a .23 BAC. Claiming that the trial court erroneously gutted their statutory defense, the defendants seek a new trial on liability and apportionment of damages.

"The standard of review on appeal of the trial court's ruling on a motion for directed verdict is de novo ." Young v. Becker & Poliakoff, P.A. , 88 So. 3d 1002, 1011 (Fla. 4th DCA 2012) (quoting Martin Cty. v. Polivka Paving, Inc. , 44 So. 3d 126, 131 (Fla. 4th DCA 2010) ). "A motion for directed verdict should not be granted unless the trial court, after viewing the evidence in the light most favorable to the non-moving party, determines that no reasonable jury could render a verdict for the non-moving party." Houghton v. Bond , 680 So. 2d 514, 522 (Fla. 1st DCA 1996).

To survive a motion for directed verdict that is directed to a comparative negligence defense, the evidence does not need to be conclusive that a plaintiff's action or inaction caused the accident. It is enough that there is evidence from which the jury can make the inference. See, e.g. , Howell v. Winkle , 866 So. 2d 192, 195-96 (Fla. 1st DCA 2004) ; Petroleum Carrier Corp. v. Gates , 330 So. 2d 751, 752 (Fla. 1st DCA 1976). Additionally: "Motions for directed verdict are rarely appropriate in negligence cases. Where there is evidence which supports an inference of comparative fault on the part of the plaintiff, the issue of comparative negligence should be submitted to the jury." Howell , 866 So. 2d at 195 (citation omitted).

Upon the plaintiff's motion, the trial court directed a verdict on the defendants' affirmative defense, which was based on section 768.36, Florida Statutes (2011). The statute provides in pertinent part:

(2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:

(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff's normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and

(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.

§ 768.36(2), Fla. Stat.

In a case involving section 768.36, this court emphasized that the trier of fact rather than the judge should apportion fault. See Pearce v. Deschesne , 932 So. 2d 640, 641 (Fla. 4th DCA 2006). We elaborated as follows:

When apportionment of fault between the plaintiff and a defendant under comparative negligence is a contested issue, it is the trier of fact that must do the apportioning, not the judge deciding a legal issue. As one court explained:

"Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff's own negligence is in issue. We do not here express an opinion as to whether a directed verdict should ever be granted where the negligence of both parties is at issue. We do, however, believe that such cases will be extremely rare."

Id. at 642 (quoting Petroleum Carrier Corp. , 330 So. 2d at 752 ). This court further observed that "only in the rare case when there is simply no factual dispute as to apportionment of negligence, does the trial judge have the authority to make a ruling on the issue as a matter of law." Id.

At trial, the plaintiff stipulated that his BAC was .23, and the trial court entered a directed verdict for the defense on subsection (2)(a) of the statute. Thus, the only issue with respect to the directed verdict is whether the trial court erred in entering a directed verdict for the plaintiff on subsection (2)(b) of the statute.

The parties cite to numerous cases on appeal in support of their...