Vitro Am., Inc. v. Ngo
| Decision Date | 21 September 2020 |
| Docket Number | No. 1D19-3737,1D19-3737 |
| Citation | 304 So.3d 379 |
| Parties | VITRO AMERICA, INC., Appellant, v. Michael T. NGO, Appellee. |
| Court | Florida District Court of Appeals |
Jack R. Reiter and Jonathan L. Gaines of GrayRobinson, P.A., Miami, for Appellant.
Timothy M. O'Brien of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, for Appellee.
In this personal injury action, Defendant, Vitro America, Inc., appeals a jury verdict and final judgment awarding Plaintiff, Michael T. Ngo, just over $8.2 million in medical and non-economic damages for injuries sustained in a vehicular collision between Mr. Ngo's Suburban and Vitro's truck. At the close of Vitro's case, the trial court directed a partial verdict in favor of Mr. Ngo, finding that Vitro's driver's negligence was a proximate cause of the accident. Because we agree with Vitro that the issue of proximate cause should have been decided by the jury, we reverse and remand for a new trial.*
In the dark hours before dawn on October 10, 2008, Mr. Ngo was traveling along Highway 98 on his usual route to work. At the same time, Michael Turner, a truck driver employed by Vitro, was executing a back-up maneuver to deliver an order of "small glass" to a business located on the same highway. At the time, Mr. Turner was operating an eighteen-wheeled tractor trailer truck. The backing maneuver initially positioned his articulated truck into a jack-knifed posture as Turner wheeled the trailer around at a near ninety-degree angle to the cab and backed into the business. According to Mr. Turner, the truck's hazard lights were flashing and his headlights and running lights were illuminated throughout the maneuver. In addition, there was reflective tape along the side of the trailer.
While Mr. Turner was backing up, he was checking his mirrors and did not see any vehicles on the highway. But when he steered the truck back around to straighten up the cab and align it with the trailer—thereby causing the cab to block the outside, right lane perpendicular to the road and the flow of traffic—the first thing he saw to his left were the headlights of an oncoming vehicle. Mr. Turner testified that only three seconds elapsed from the moment he first saw the headlights until the vehicle collided into the cab near the front wheel on the driver's side. Mr. Turner did not hear any squealing of brakes and estimated that the vehicle had been traveling between 50 to 60 miles per hour when it impacted his cab.
Mr. Ngo drove that stretch of Highway 98 nearly every day and had never before seen—and did not expect—an eighteen-wheeled tractor trailer backing up in his lane of travel. He maintained that, prior to the collision, he was not distracted, his low beams were on, his vehicle was on cruise control set at 50 miles per hour—despite the legal limit being 55 miles per hour—there was no natural light, no streetlights, and nothing on the road. As Mr. Ngo described it:
I looked and ... all of a sudden, the truck appeared in front of me out of nowhere. It's like a ghost or something. It just pop[ped] out in front. Then when I saw that, I thought I had a few seconds and I tried to veer a little bit, tried to stop it and stomp the brake, but I just ... couldn't avoid the collision.
Mr. Ngo had been looking down his lane and estimated he had at most two or three seconds before he would collide with the truck. As a result of the high-speed impact, Mr. Ngo suffered extensive injuries—primarily fractures of the bones in his right leg, ankle and heel.
In his opening statement to the jury, Vitro's attorney admitted that Mr. Turner was negligent in the manner in which he maneuvered his tractor trailer. That being said, however, he queried:
But here's what the case is about, who is responsible for the crash and Mr. Ngo's injuries? ... Was it Mr. Turner, was it Mr. Ngo, or was it both? And that's really the question you-all are going to be answering when you hear the evidence. That's especially important in a case like this because you're going to hear that the reason that Mr. Ngo's injuries are so bad is because he hit the vehicle at such a high speed.
During the presentation of his case, Mr. Ngo's expert, David Stopper, took the stand. Mr. Stopper was an investigator of commercial vehicle accidents. He gained his expertise in that field while working in law enforcement, where he spent the majority of his career involved in truck and traffic enforcement. In addition, he received specialized training at various seats of higher learning, ultimately receiving his certification as an accident reconstructionist. From his investigation, he estimated that Mr. Ngo was 1400 feet behind a curve in the highway when Mr. Turner began his backing maneuver. At nine seconds out from the collision, he calculated that Mr. Ngo was 660 feet from the point of impact. The cab would have been in his field of vision, but Mr. Stopper had examined the reflective tape on the truck and noted that it was irregular. At a forty-five degree angle on the jack-knifed trailer, the tape would have had less reflectivity and been "relatively ineffective" to reflect approaching headlights. Mr. Stopper agreed that the truck's flashing lights and reflective tape would, at some point, have been within Mr. Ngo's field of vision as he rounded the curve, but theorized that Mr. Ngo would not necessarily have perceived the images he saw as representing a hazard, since the flashers could have been misunderstood as a "turn signal somewhere up the road." Instead, according to Stopper, as the highway straightened out ahead of him, Mr. Ngo would have been unable to "interpret exactly what the movement of [the truck] was in sufficient time to perceive it, and react ... to the obstacle swinging out into his lane," and it would not have been unusual under the driving conditions for an average driver to experience that type of perceptual conflict. In short, based on the data he had collected, Mr. Stopper opined that Mr. Ngo would have been unable to avoid the collision.
In response to Mr. Stopper's opinion, Vitro called its own expert, Larry Dewberry. Mr. Dewberry was a consulting engineer, licensed in the states of Florida, Georgia, Alabama, and Mississippi. His specialty within the field of engineering was "failure analysis, such as vehicle accident analysis." He testified to having an undergraduate and a master's degree in electrical engineering, a master's degree in mechanical engineering, and a master's degree in fire protection engineering. During his career in professional engineering, Mr. Dewberry had testified as an expert witness in accident reconstruction.
From his investigation of the accident, and relying on Mr. Turner's deposition testimony, Mr. Dewberry determined that the truck's headlights, running lights, and hazard lights were on at the time of the collision. Given the road configuration, he opined that the truck would have been visible from 900 feet away, and, had Mr. Ngo applied his brakes sooner, the accident could have easily been avoided. Specifically, Mr. Dewberry testified that at the 900-foot mark, Mr. Ngo would have had 10.9 seconds to apply his brakes in order to avoid the collision.
Mr. Dewberry also conducted a nighttime simulation of the accident utilizing the same truck, with Mr. Turner reenacting his back-up maneuver. (For safety reasons, the simulation was not conducted at the actual scene.) Mr. Dewberry was in his car, stationed at a point 500 feet from the truck with his low beams on. From that vantage point, he never lost sight of the truck's flashing lights, its taillights, the reflective tape, and, once the cab turned to face frontward, the truck's headlights. His video of the simulation was published to the jury. According to Mr. Dewberry, during the entire simulation—as he drove toward the truck—there was never a point that he could not see a flashing light. Ultimately, he concluded that an "attentive driver" "very easily" could have avoided the collision.
Following Mr. Dewberry's testimony, Vitro rested its case. Forthwith, Mr. Ngo's attorney moved for a partial directed verdict asking the court to find that the admitted negligence of Vitro's driver was also the proximate cause of the accident. Specifically, counsel argued that the uncontroverted evidence demonstrated that "but for that negligence, Mr. Ngo's damages would not have occurred." He was quick to add, however, that there might have been "multiple legal causes" for the accident, so that the ruling would not necessarily be one on comparative fault. In response, Vitro's counsel argued that Mr. Dewberry's testimony created a jury question concerning Mr. Ngo's failure to respond in time. The trial court, however, agreed with Mr. Ngo, ruling: Accordingly, the court granted the motion finding that Vitro's negligence was a proximate cause of the accident.
Straightaway, Vitro's attorney renewed his motion for a directed verdict on both causation and liability, which had been unsuccessfully argued at the close of Mr. Ngo's case. Additionally, he moved for a directed verdict on comparative fault, asserting that the undisputed evidence proved that Mr. Ngo "could and should have taken some evasive action to avoid the accident," leaving for the jury only the potential question of apportioning fault between the two parties. The trial court ruled that a jury question remained; that there was the factual issue "of perception and visual clutter [and] if the jury believed everything [Mr. Ngo's expert] witness said, then they could find against the defendant[.]" Highlighting the incongruity between the court's ruling that there was no factual issue on the question of proximate causation as to Vitro yet there remained a factual question regarding Mr. Ngo's involvement in causing the collision, the court...
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... ... damages must be included in such an award." Allstate Ins. Co., Inc. v. Campbell, 842 So. 2d 1031, 1034 (Fla. 2d DCA 2003). Thus, we reverse and remand for further ... --------Notes:1 We reject the remaining claims without further elaboration. See Vitro Am., Inc. v. Ngo, 45 Fla. L. Weekly D2192, D2195, 304 So.3d 379, (Fla. 1st DCA Sept. 21, 2020) ... ...