Moore v. Taylor Concrete & Supply Co., Inc.

Decision Date20 December 1989
Docket NumberNo. 89-211,89-211
Citation553 So.2d 787
CourtFlorida District Court of Appeals
Parties15 Fla. L. Weekly D33 Jacqueline H. MOORE, Appellant, v. TAYLOR CONCRETE & SUPPLY COMPANY, INC., Appellee.

James R. Green, of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant.

Daniel C. Shaughnessy, of Coker, Myers, Schickel, Cooper & Sorenson, P.A., Jacksonville, for appellee.

JOANOS, Judge.

Jacqueline Moore (Moore) appeals the final judgment and damages award rendered in a lawsuit filed by Moore against Taylor Concrete and Supply Company, Inc., (Taylor Concrete) and its driver, Frank Broxton, for injuries Moore suffered in a motor vehicle accident involving Taylor Concrete's truck. The issues for our review concern various evidentiary rulings at trial. We reverse and order a new trial.

The accident occurred on the night of June 7, 1984, at approximately 9:30 p.m., on State Road 121, north of Gainesville. At that time, Moore was traveling north from Gainesville to her home in Brooker. It was a dark night, and there were no street lights in the area. At that same time, Frank Broxton was operating a Taylor Concrete tractor trailer rig with a flatbed trailer loaded with manhole covers. Although Broxton's normal work hours were from 7:00 a.m. until 4:30 p.m., on this particular day he attempted to make a late delivery to a concrete company. When he arrived at the concrete company at 9:00 p.m., he found the business closed.

Because the business where Broxton attempted to make his delivery is located on a dead-end street, he backed the flatbed trailer out to State Road 121, a distance of 300 yards, in order to turn around. Herbert Bevill, Broxton's helper, was posted on the road with a flashlight to watch for traffic, and to signal Broxton as he negotiated the turn. It was so dark in the area that the driver was unable to see either the ditch or the shoulder of the road. When Broxton backed, the trailer completely straddled the road, blocking traffic from both directions. According to Broxton's deposition testimony, he saw no headlights approaching as he backed out. Then, when the trailer was extended completely across the road, he saw headlights coming around a curve in the road. He stopped the truck, put it in gear and "[was] fixing to take off, get out of the way." Before Broxton got the truck in first gear, Moore's automobile struck the Taylor Concrete trailer.

Trooper Ornowski was the investigating officer. Her testimony reveals that she approached the scene with her bright lights on, looking for the accident. The trooper observed cars on the side of the road, and "saw one car in the middle of the road damaged." She said she kept her bright lights on and turned on her spotlights, as she looked for the other vehicle. As the trooper pulled up next to the damaged vehicle, she suddenly became aware of the other vehicle, stating that at that time she was approximately fifty to seventy feet from the incident. At first the trooper was unable to determine in which direction the flatbed semi was going. When the trooper was asked if there were any lights on the side of the flatbed trailer, the following exchange ensued:

A. No, there was not.

Q. Well, how easy was it to see the truck?

A. It was almost impossible looking at it, because the flatbed itself was dark and primer colored, the tire was black, the wheels that were in the tires were black. The semi itself was dark in color. It had running lights on it, but the running lights were facing the other direction, and you could not pick them up from the side.

Q. The running lights, when you say that, are you referring to the cab?

A. Yes sir. Those are the orange lights across the top of it.

Q. They were not visible as you approached it from the side?

A. No, sir, they were not.

During cross examination, Trooper Ornowski stated that although all the lights on the truck were operating, those lights were on the cab of the rig facing the driveway rather than the roadway. That is, the lights on the cab were facing west and the taillights of the rig pointed east, while State Road 121 runs in a north-south direction. The trooper said the flatbed trailer had reflectors, but no lights.

During recross examination of the trooper, counsel for Taylor Concrete asked the questions which are the subject of the first issue appealed, i.e., whether the trial court erred in overruling appellant's objection to appellee's examination of Trooper Ornowski, which inferred that the trooper did not issue a traffic citation to Taylor Concrete's driver:

Q. Trooper, I assume, and I don't mean to belabor the point, I know it's been a long time ago, you've got one sheet or two sheets of paper there that you're trying to remember on, you talked to people, I think, that you finally agreed with me on at different times, but if Florida law had required that there be lights on that trailer, you would have--you would have known that and you would have cited somebody for that, wouldn't you?

A. Probably. I don't generally cite everybody for everything. You know, when I was working an accident or going to stop somebody, I don't generally cite them for everything.

Q. But generally in cases where there's an accident involved or something and you would have been there, you would have cited it. Do you remember what was on the back of the flatbed?

MR. GREEN: Excuse me, your Honor. Can we approach the bench?

At that point, Moore's counsel objected to opposing counsel's statement which indicated that Taylor Concrete's driver was not cited in the accident. The objection was overruled.

The testimony of Mr. Green, the first witness to arrive at the scene, established that he had been driving behind Moore, that she was not speeding, and in fact, had been driving slightly under the speed limit. Mr. Green said he intended to pass Moore at one point, but did not do so because he knew there was a curve in the road. Mr. Green testified that he did not see the trailer until after he had stopped, and was walking toward Moore's car to give assistance. During cross examination, Mr. Green stated the flatbed truck did not have any lights on it, and he did not see any reflectors.

Taylor Concrete's defense at trial was predicated on the theory that Moore was negligent. To that end, Taylor Concrete's counsel introduced an Alachua General Hospital emergency room record which indicated that Moore had a blood alcohol level of .187 on the night of the accident. The hospital records custodian and the laboratory technician agreed that a record charting error was possible, but both considered such an error unlikely.

Evidence offered to counter the defense allegation that Moore had been drinking on the night of the accident included the testimony of Trooper Ornowski, Mr. Green, and Moore. Trooper Ornowski stated she did not detect any odor of alcohol on Moore's breath. The trooper further stated that Moore amazed her in that she was able to talk coherently, answer questions, and help with the investigation, in spite of the seriousness of her injuries. Mr. Green stated unequivocally that "[t]he lady was not drinking." Moore also testified that she did not have anything to drink on the night of the accident.

The record contains extensive evidence concerning the severity of the injuries Moore suffered in the accident, as well as the long-term effects those injuries have had. Her facial injuries required plastic surgery; her knee cap was knocked off; and she suffered abdominal injuries that required additional surgery two to three years after the accident. In addition, Moore has experienced memory problems that interfered with her ability to perform well at work, chronic positional vertigo, seizure disorders for which she takes Dilantin, and depression that was considered suicidal at one point.

The second issue concerns statements made by Taylor Concrete's counsel during closing argument, and the thwarted attempt of Moore's counsel to rebut those statements. The following portions of the argument advanced by Taylor Concrete's counsel elicited objections from Moore's counsel:

The judge is going to read your verdict form for you in a few minutes. He's going to give you a copy of it and you're going to go out. Okay. The first question is going to be, Was there negligence on the part of Taylor Concrete. Reply. Was it the legal cause of the injuries to Jackie Moore? I believe, and the circumstances are out there, that Mr. Broxton was reasonable in the efforts that he was trying to make on that night. And your answer there should be no. If you disagree with me, if your rememberance of the evidence, your understanding of the facts are different, you go to the next question: Was there negligence on the part of Jackie Moore that was the legal cause of her injuries. I believe you found--

MR. GREEN: Your Honor, I'm going to object to him testifying what he believes in closing argument.

THE COURT: Overruled.

MR. SCHICKEL: The evidence will have shown you that Jackie Moore was at least as negligent at that point in time as Taylor Concrete, if at all. The third question then, if the answer to the second one is yes--and you have to divide it up. And number three, the percentage of negligence that you think was applicable to Taylor Concrete, as well as to Ms. Moore. We've talked about that. I think if not fifty-fifty, even more than that, if you get that far.

. . . . .

The summary of where I am here--and what I'm going to do as I leave you now, we've gone through and talked about liability. We've talked about the damages. We've talked about why I see the problems that--and I believe that the evidence has shown--the problems with Ms. Moore are her own creation by her obtaining the drugs and narcotics and so forth or by her pre-existing conditions or by whatever she has manufactured at work, in having to work for a new boss, are her own. She created that herself.

. . . . .

I want--I believe the jury system...

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