McFall v. Inverrary Country Club, Inc., 91-1822

• Decision Date: 07 July 1993
• Docket Number: No. 91-1822,91-1822
• Citation: 622 So.2d 41
• Parties: 18 Fla. L. Week. D1567 Michael McFALL and Katherine McFall, Appellants, v. INVERRARY COUNTRY CLUB, INC.; Ben Johnson Cooper; Bruce Remsburg; and Inverrary Association, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 41

622 So.2d 41

18 Fla. L. Week. D1567

Michael McFALL and Katherine McFall, Appellants, v. INVERRARY COUNTRY CLUB, INC.; Ben Johnson Cooper; Bruce Remsburg; and Inverrary Association, Inc., Appellees.

No. 91-1822.

District Court of Appeal of Florida Fourth District.

July 7, 1993.

Rehearing and/or Clarification Denied; Rehearing,

Certification and Rehearing En Banc Denied Aug. 31 1993.

John Beranek of Aurell Radey Hinkle Thomas & Beranek, Tallahassee, and Jon E. Krupnick of Krupnick, Campbell, Malone & Roselli, Fort Lauderdale, for appellants.

Robert H. Schwartz of Gunther & Whitaker, P.A., Fort Lauderdale, for appellee Inverrary Country Club, Inc.

G. Bart Billbrough of Walton Lantaff Schroeder & Carson, Miami, for appellee Inverrary Ass'n, Inc.

FARMER, Judge.

Inverrary Boulevard is a 4-lane divided roadway, with a landscaped median, that meanders generally north and south through a golf course called Inverrary Country Club. To get to the course itself from the clubhouse, it is necessary to drive a golf cart along a path and across this divided roadway. When the course was originally built in the 1970s, the surrounding area was largely rural with little traffic, so there was little danger in the crossing.

Over the years both the traffic and the vegetation in the median had grown wildly, and eventually approaching roadway traffic was obscured from golf cart drivers by plants bordering the golf course and in the median. After a fatal collision, some plants were removed from the median and a policy of keeping the bordering plants from exceeding a certain height was adopted. But traffic continued to increase and more accidents and "near misses" occurred.

In the middle 1980s, the owner of the golf course sought and obtained permission from county and municipal officials to construct a traffic light at the crossing. The signal was placed over the roadway and directed only toward the traffic proceeding north and south. A stop sign was placed on the golf course at the crossing facing in the direction of approaching golf cart drivers. The idea was that the cart driver could activate the signal by pressing a button on the stop sign. The traffic signal visible to drivers on the roadway would then change to red, and the carts could proceed across the roadway with traffic stopped.

The golf course was later sold to its present owners and by the end of the 1980s different plants were added which newly obstructed the roadway traffic to approaching carts. Moreover, because the stop sign was so situated that mowing equipment could not easily pass, someone had turned the sign so that it now faced in the direction of the roadway, rather than the cart path for which it had been designed and erected.

It was in these circumstances that plaintiff McFall and other graduates from the University of Florida were invited to participate in an alumni golf outing at the golf course. He was not a member of the club, and neither was his golfing partner who drove their golf cart. At the end of play, as they were attempting to return to the clubhouse, they approached the crossing and, seeing a stop sign that appeared to face traffic only on the roadway, proceeded into the intersection. Unfortunately, a vehicle approaching the same intersection on the other side of the median, that McFall and the cart driver say they never saw, collided with their cart, causing McFall to suffer serious injuries.

McFall's suit against the driver of his cart, the owner of the golf course [Club], and the entity that maintained the roadway [Association] went to trial before a jury. He called an expert during his case in chief who testified that the design and maintenance of the crossing with the above circumstances created a dangerous condition that ostensibly led to his injuries. On cross examination by the Club's lawyer, his expert was asked the following:

Q. Is sound a factor that has any significance in the real world of accidents or the prevention or avoidance of accidents?

A. It could, depending on what that sound was, how far away it was, decibel level and so forth.

Q. Things like blowing horns and screeching tires being a sound that might have some impact?

A. It could depending on when it was heard, the loudness of it.

Q. But that's obviously not a factor that you considered?

A. At this point, no sir.

Later in the trial during the Club's case, it called an expert who testified that any approaching traffic on the roadway would have been heard by a cart driver, even if not seen. At the end of the defendants' case, McFall sought to call his expert back as a rebuttal witness to testify on the issue of "sound". The Club objected, saying that the witness had been previously cross examined on that subject during the plaintiff's initial case. McFall's attorney argued that during a pretrial deposition of the defense expert the witness had never addressed the subject whether approaching traffic could have been heard and that the trial testimony had therefore come as a surprise, as to which he now should be allowed to adduce rebuttal evidence. The court excluded the rebuttal evidence, explaining as follows:

THE COURT: So you understand the ruling a little better, if there were an issue that this witness had not had an opportunity to testify about yesterday and the issue was first raised today, then I would say bring him back. * * * What I am saying, your witness already gave his opinion about that yesterday. It is not rebuttal. * * * Here's the point. He asked him about it. If he wanted to give his opinion as to whether sound played a part, you had the opportunity yesterday. I am not going to allow it.

During the trial, the court also precluded plaintiffs from introducing evidence of numerous other accidents and near misses at the crossing, as well as evidence as to whether the stop sign complied with section 316.0747, Florida Statutes (1989). The jury returned a verdict in favor of the Club and the Association, and found the driver of the golf cart 100% responsible for the accident. McFall's post trial motions renewing the above evidentiary questions were denied. He and his wife appeal. We reverse for a new trial.

McFall argues that the exclusion of his rebuttal expert's testimony was an abuse of discretion. He points out that the proposed testimony was not in any sense cumulative and that he had no obligation during his case in chief to offer evidence to disprove a defendant's theory of the case. Even if he had such an obligation, he further argues that here the defense witness never identified the theory used at trial during the pretrial deposition. Hence, he contends, even if a plaintiff must address possible defense theories during plaintiff's initial case, here he was prevented from doing so by the failure of the defense witness to disclose all of his theories and opinions in discovery.

We agree with McFall that this case is indistinguishable from our recent decision in Heberling v. Fleisher, 563 So.2d 1086 (Fla. 4th DCA), rev. dismissed, 570 So.2d 1305 (Fla.1990). In that case, plaintiff's expert had testified that negligent diagnosis or treatment by defendants was the cause of decedent's death. Defendants' experts later testified that irreversible brain damage had actually caused the death. Plaintiff then sought to call a neurosurgeon on rebuttal who would have disputed the brain damage theory. The trial court refused to allow the rebuttal witness because his testimony would have been cumulative and should have been presented during plaintiff's case.

In reversing for a new trial, we...