Probkevitz v. Velda Farms, LLC

Decision Date09 September 2009
Docket NumberNo. 3D07-1052.,3D07-1052.
Citation22 So.3d 609
PartiesIris PROBKEVITZ, as Personal Representative of the Estate of Denise Probkevitz, a minor, deceased, Appellant, v. VELDA FARMS, LLC, a foreign corporation, and Joseph Anthony Dixon, Appellees.
CourtFlorida District Court of Appeals

Mitrani, Rynor & Adamsky and Pamela A. Chamberlin, Miami, for appellant.

Hinshaw & Culbertson and James H. Wyman, Ft. Lauderdale; Katten Muchin Rosenman and Ugo Colella, for appellees.

Before RAMIREZ, C.J., and COPE, J., and SCHWARTZ, Senior Judge.


Iris Probkevitz, as Personal Representative of the Estate of Denise Probkevitz, appeals the denial of her motion for new trial and the entry of an adverse final judgment in this wrongful death action. We reverse and remand for a new trial because the trial court impermissibly allowed the introduction of evidence of negligence and allowed the jury to consider such evidence. Furthermore, the trial court incorrectly disallowed the testimony of an expert witness whose testimony was not cumulative in nature.

This case arises from an automobile accident that occurred at 2:25 a.m. on February 9, 2002, when a vehicle driven by Denise Probkevitz collided with a Velda Farms commercial truck. At the time of the accident, Joseph Anthony Dixon was the driver of the commercial truck. Denise was fifteen years old and had a driver learner's permit. After the impact, Dixon's truck pushed Denise's vehicle one hundred sixty-eight feet before her vehicle came to a stop. Denise died at the scene.

Denise's mother and personal representative, Iris Probkevitz, filed a wrongful death action against Dixon and Velda Farms. After a seven-day jury trial, a defense verdict, and adverse rulings on her post-trial motions, Probkevitz appeals a number of trial court rulings.

I. Factual Background

Probkevitz first assigns error to the trial court's ruling that allowed her negligence to be introduced at trial and appear on the jury verdict form. Dixon asserted as an affirmative defense that Probkevitz's action was barred, or that his percentage of fault should be reduced, because of Probkevitz's negligence. Dixon had moved for leave to file a third-party complaint against Probkevitz, in her capacity as a survivor, for vicarious liability, negligent supervision, and negligent entrustment. The trial court initially granted Dixon's motion, but eventually ruled in Probkevitz's favor as to the negligent supervision and negligent entrustment counts. As to the vicarious liability count, the trial court granted the motion as to any negligence of Probkevitz, and it denied the motion as to Probkevitz's vicarious liability. Dixon moved for reconsideration. The trial court denied the motion.

At the start of trial, Probkevitz moved to dismiss the remaining vicarious liability claim. The trial court denied the motion. Probkevitz also moved to exclude evidence of any prior instances of Denise's driving in violation of her license restriction. The trial court denied the motion. The trial court allowed the jury to consider Probkevitz's negligence. The jury verdict form contained a question asking the jury to determine whether there was negligence on the part of Probkevitz which was a legal cause of injury to Denise.

The evidence at trial established that Probkevitz was the owner of the Ford Taurus that Denise drove and that Probkevitz had signed for Denise's learner's permit. On the night of the accident, Denise and a friend, Laelani Day, had been driven by Laelani's mother and dropped them off at Probkevitz's house, where Laelani was to spend the night. Probkevitz testified that after eating a late dinner, she went to bed. Denise and Laelani, who were planning to visit another girl in the same apartment complex stayed up. Probkevitz was awakened by a loud boom, which turned out to be her daughter's fatal accident. Laelani, who was a passenger in the vehicle driven by Denise, survived the accident, but she had no memory of that night or the accident. Probkevitz denied that she allowed Denise to drive on the night of her death, or that she was aware that Denise had taken the car, until after the accident.

There was no direct evidence presented as to why Denise and Laelani were out that night. Probkevitz's theory at trial was that, if Dixon had been driving at a safe speed and with reasonable caution as he approached a flashing yellow signal, he would have seen Denise's vehicle in ample time to avoid the accident. Dixon's theory was that he did not see Denise's vehicle in time to stop, and that Denise had ran through a flashing red light without slowing down, and he was unable to stop in time to avoid the accident.

The facts presented at trial established that Dixon was driving on his way to work when Denise's Ford Taurus sped through a flashing red light into an intersection. Dixon testified that this made it impossible for him to stop and avoid the collision; that there was no way for him to avoid the accident because Denise's vehicle shot into the intersection; and that Denise's car did not stop at the red light in the intersection. Dixon further testified that he attempted to apply both his foot and hand brake when he saw Denise's car, However, he did not have enough time to fully brake before the car slammed into his truck. Finally, Dixon admitted that, had he been going slower, he would have had more time to apply his brakes, slow down, or stop.

The defense introduced the testimony of three expert witnesses: G. Bryant Buchner, Marisela Fernandez, and Harry Snyder. Buchner, an accident reconstruction expert, arrived at certain conclusions based upon a crash analysis regarding the speed of both vehicles; the bumper's displacement; and the truck's headlights. Buchner opined that Dixon could not have stopped in time to avoid the accident, although he was driving about thirty to forty miles per hour, which was at or below the speed limit. Fernandez, an officer with the Florida Highway Patrol, testified over Probkevitz's objection. She stated that she investigated the accident and concluded that Dixon was not speeding. Both Buchner and Fernandez agreed that Denise did not yield at the red light. Snyder likewise testified as to reconstruction issues.

In support of Probkevitz's theory of the case that Dixon was driving at an excessive speed, she attempted to discredit Dixon's memory to establish that he was speeding and that he had enough time to stop when he saw Denise's car. She claimed that Dixon changed his testimony after he spoke to Buchner, and she emphasized other inconsistencies in Dixon's testimony.

Probkevitz likewise attacked Buchner's testimony on cross-examination. She pointed out errors or inconsistencies in Dixon's testimony regarding speed and distance. She attempted to show that Buchner's speed calculations were not exactly the same as those of Fernandez. Probkevitz also attempted to exclude Fernandez's testimony, arguing that she was unqualified to give expert testimony.

Probkevitz presented the testimony of two accident reconstruction expert witnesses whose testimony she intended to introduce at trial: James Dobbs and David Brill. Dobbs testified that Dixon must have driven much faster than the speed he claimed, and based upon a lack of skid marks on the street, Dixon only hit his brakes at or immediately before the point of impact.

The trial court limited the testimony of Probkevitz's other accident reconstruction expert, Brill, to matters related to the operation of Dixon's truck. The trial court later disallowed Probkevitz's proffer of Brill's testimony in rebuttal.

Probkevitz testified that she did not allow Denise to drive on the night of her death, and that she did not know that Denise had taken her car until after the accident occurred. Probkevitz also testified that she was unaware that Denise had ever driven without an adult in the car, or at night, in violation of the license restrictions. Laelani, the passenger in Denise's car on the day of the accident, however, testified that she had driven with Denise on two prior occasions, and on one of those occasions, Denise drove her and a friend to the beach without an adult in the car.

At the conclusion of the defense's case, Dixon again moved to include the issue of Probkevitz's negligence on the verdict form. The trial court denied the request, stating that it would stand by its previous ruling which only allowed the vicarious negligence of Probkevitz to be considered by the jury. Probkevitz subsequently moved for a directed verdict on the contribution claim. The trial court denied the motion.

On the last day of the trial, the trial court reversed its previous ruling which disallowed Probkevitz's negligence to be considered. The trial court thereafter instructed the jury to consider the issue of Probkevitz's negligence separate and apart from the negligence of Denise and Dixon. The court also instructed the jury on the contribution claim based on Probkevitz's negligence and on the ordinary standard of negligence. The verdict form, however, permitted a three-way apportionment of fault on the main negligence claim, among Dixon, Denise, and Probkevitz.

The jury returned a defense verdict of no negligence against Dixon. Probkevitz filed a motion for new trial, arguing that the trial court committed reversible error when it allowed the jury to consider the issue of her negligence on the verdict form in contradiction of the court's previous ruling. She argued that the trial court's ruling allowed Dixon to portray Probkevitz as a bad, uncaring mother, responsible for her own daughter's death. The trial court denied Probkevitz's motion and entered judgment consistent with the jury's verdict.

II. Legal Analysis

The two main issues involved in this appeal are: (1) whether the trial court committed error when it permitted the introduction of evidence of Probkevitz's...

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3 cases
  • M.B. v. S.P.
    • United States
    • Florida District Court of Appeals
    • October 18, 2013
    ...a de novo standard applies. See Krolick v. Monroe ex rel. Monroe, 909 So.2d 910, 913 (Fla. 2d DCA 2005); Probkevitz v. Velda Farms, LLC, 22 So.3d 609, 614 (Fla. 3d DCA 2009) (both holding that where an error of law occurs in the denial of a motion for new trial, the de novo standard applies......
  • R.J. Reynolds Tobacco Co. v. Grossman
    • United States
    • Florida District Court of Appeals
    • September 21, 2012
    ...representative of an estate on the verdict form constitutes harmful error and warrants an entirely new trial. Probkevitz v. Velda Farms, LLC., 22 So.3d 609, 615 (Fla. 3d DCA 2009), rev. denied,39 So.3d 321 (2010). In Probkevitz, a fifteen-year-old girl died in an automobile accident when th......
  • R.J. Reynolds Tobacco Co. v. Grossman, 4D10-2993
    • United States
    • Florida District Court of Appeals
    • June 27, 2012
    ...representative of an estate on the verdict form constitutes harmful error and warrants an entirely new trial. Probkevitz v. Velda Farms, LLC., 22 So. 3d 609, 615 (Fla. 3d DCA 2009), rev. denied, 39 So. 3d 321 (2010). In Probkevitz, a fifteen-year-old girl died in an automobile accident when......

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