Penske Truck Leasing Co., LP v. Moore

Citation702 So.2d 1295
Decision Date05 November 1997
Docket NumberNos. 96-2255,s. 96-2255
Parties22 Fla. L. Weekly D2534 PENSKE TRUCK LEASING CO., LP, Randy Allen Scheele, and Marlene D. McKuhen, Appellants, v. Randy MOORE, as Personal Representative of the Estate of Alice Denine Moore, Ted Crownover and Gay L. Crownover, as Co-Personal Representatives of the Estate of Christopher J. Crownover, Michelle Fields, as Personal Representative of Margaret Hammons, Appellees. to 96-2257.
CourtCourt of Appeal of Florida (US)

Edward R. Nicklaus of Nicklaus & Wicks, P.A., Coral Gables, and James C. Blecke of Deutsch & Blumberg, P.A., Miami, for appellants.

Robin S. Richards of Hill & Neale, Fort Lauderdale, and Michele I. Nelson of Paxton, Crow, Bragg, Smith & Keyser, P.A., West Palm Beach, for appellant Marlene D. McKuhen.

Scott R. Gill of Law Offices of Scott R. Gill, P.A., and Ronald D. Poltorack of Law Offices of Ronald D. Poltorack, P.A., Fort Lauderdale, for appellee Randy Moore, as Personal Representative of the Estate of Alice Denine Moore.

Mary Margaret Schneider of Stanley M. Rosenblatt, P.A., Miami, for appellees Ted Crownover and Gay L. Crownover, as Co-Personal Representatives of the Estate of Christopher J. Crownover.

Bryce W. Ackerman of Simmons, Hart & Sheehe, Ocala, for appellee Michelle Fields, as Personal Representative of the Estate of Margaret Hammons Fields.

POLEN, Judge.

Defendants, Penske Truck Leasing Co., LP, a truck leasing company, Marlene D. McKuhen and Randy Allen Scheele ("Penske"), appeal an adverse judgment in a case involving a multi-vehicle accident in which three persons were killed. The accident occurred when a driver of another vehicle, Christopher J. Crownover, drifted across several lanes of traffic on Interstate 95, and crashed into the rear of the Penske truck which McKuhen and Scheele had parked on the side of the road in order to coordinate directions. Prior to pulling over to the shoulder of the highway, Scheele, operating the Penske truck which had been leased by McKuhen, was following McKuhen, who was operating a Hyundai automobile. Crownover and his passengers, Alice Denine Moore and Margaret Fields, were killed in the crash.

The plaintiffs' decedents sued Penske, and received awards of $206,889.97 for Crownover, $795,697.48 for Moore, and $248,468.59 for Fields, on the following percentages of negligence: Crownover--50%; McKuhen (and Penske)--35%; Scheele (and Penske)--15%. The breakdown of damages for each claim was as follows:

                            Crownover (Economic)            $   13,779.74
                            Crownover (Non-economic)           400,000.00
                            Total                           $  413,779.74
                            Moore (Economic)                $  395,697.48
                            Moore (Non-economic)               800,000.00
                            Total                           $1,195,697.48
                            Fields (Economic)               $   48,468.59
                            Fields (Non"Economic)              400,000.00
                            Total                           $  448,468.59

Penske raises five points on appeal, some of which require reversal. It seeks a new trial on liability and the apportionment of fault only.


Penske first argues that the trial court should have granted a directed verdict on causation because, even assuming the truck was stopped on the shoulder of the highway contrary to statute, it was not the proximate cause of the accident. We disagree, as the issue of proximate cause was one to be determined by the jury upon proper instruction. Reasonable persons could have differed as to whether the improper parking of the Penske truck could have foreseeably led to a rear-end collision, such as the one that occurred. See Springtree Properties, Inc. v. Hammond, 692 So.2d 164 (Fla.1997)(holding that, in cases where the evidence raises any issue of material fact, the evidence is conflicting, or the evidence permits differing reasonable inferences as to proximate cause, the question of foreseeability as it relates to proximate cause must be left to the finder of fact); Bialek v. Lensen, 421 So.2d 654 (Fla. 1st DCA 1982)(holding that, notwithstanding defendant's illegal parking of his vehicle on the shoulder of the highway, the issue of proximate cause with respect to the accident that ensued was one properly determinable by the jury).


Penske next argues that the trial court violated its own in limine order by allowing the state trooper assigned to the case to testify about statutory violations committed by and citations issued to Penske. Before trial, the court had entered an order in limine excluding any testimony by any witness or comments by any attorney concerning citations issued, or attempted to be issued, to Penske. It contends that the order was violated when counsel for appellees and the state trooper engaged in the following exchange:

Q. And, if its not due to a mechanical breakdown, or a medical problem or a disablement, what do you do if you find out someone is parked over there?

A. Issue a traffic citation.

* * * * * *

Q. You made a determination that Vehicle Number 3, which was the McKuhen vehicle and Vehicle Number 2, were illegally parked on the interstate?

A. Yes.

We agree with Penske that the above comments violated both the in limine order as well as the basic tenets of Florida law. Florida law is well settled that questions suggesting that a driver has been charged with a traffic violation in connection with an accident constitute prejudicial error. Moore v. Taylor Concrete & Supply Co., Inc., 553 So.2d 787, 790 (Fla. 1st DCA 1989). In Albertson v. Stark, 294 So.2d 698, 699 (Fla. 4th DCA 1974), we explained the reason for this rule:

Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror's determination of fault on the part of the respective drivers.

Id.; see also Spanagel v. Love, 585 So.2d 317 (Fla. 5th DCA 1991)(statement by police officer that there was no improper driving on the part of the defendant motorist required a new trial, as statement was tantamount to a declaration by the police officer that no traffic summons had been issued in the case).

We reject appellees' contention that any error that may have occurred was inadvertent, or, alternatively, that the question asked was not directly aimed at whether the vehicles at bar were illegally parked. Having the trooper testify that he would issue a traffic citation in a certain instance violates the spirit of Albertson and the order in limine. The jury could have attached undue importance to his testimony regarding whether he, in issuing the citation, determined that Penske's actions were negligent. Penske's objections to this testimony should have been sustained, and, if requested, a curative instruction given.


Penske also argues that the court erred in permitting the appellees' expert to testify that Scheele and McKuhen failed to use "reasonable care" by parking their vehicles in the emergency lane of the highway, and for him to interpret whether Penske violated a specific parking statute. Appellees, on the other hand, contend that any such error was invited, as counsel for Penske "opened the door" by asking the expert whether it was negligence or failure to use due care to drive off the road in the first place.

Ordinarily, we would agree that the expert's testimony clearly invaded the province of the jury. See Smaglick v. Jersey Ins. Co. of NY, 209 So.2d 475. 476 (Fla. 4th DCA 1968)(holding "it is patent that the jury was fully competent" to answer on its own the question asked of the expert as to whether the driver of the car exhibited "sensible control" of it); Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2d DCA 1961)(holding that, when facts are within ordinary experience of jury, conclusion therefrom will be left to them, and opinion of expert should be excluded where facts testified to are of a kind that do not require any special knowledge or experience to form a conclusion, or are of such a character that they may be presumed to be within the common experience of all persons); Rosenfeld v. Johnson, 161 So.2d 703 (Fla. 3d DCA 1964)(holding it was error to allow traffic officer's opinion on whether defendant had been "driving properly"). However, based on the record below, we do not find reversible error, as the questions asked by Penske's attorney regarding reasonable care invited the error. In eliciting testimony from the officer interpreting the statute and analyzing whether Penske's conduct was legal, he opened the door to appellee's questions on redirect examination as to whether or not Penske violated the statute by parking the truck where they did at the time of the accident. Nevertheless, since this case will be retried, and assuming Penske does not elicit these questions of the expert during examination, the trial court, on remand, should preclude this type of expert opinion testimony.


Penske next argues that it should not have been held vicariously liable for the actions of McKuhen, because she was not driving the Penske truck at the time of the accident. We affirm on this issue. Penske, as the owner/lessor of the truck, is vicariously liable for McKuhen's negligent control of the truck under the dangerous instrumentality doctrine. Under this doctrine, when control of a vehicle is voluntarily relinquished to another, only a breach of custody amounting to conversion or theft will...

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