Walston v. Florida Highway Patrol, 82-657

• Decision Date: 20 April 1983
• Docket Number: No. 82-657,82-657
• Parties: David Eric WALSTON and William M. Bartleman, Appellants, v. FLORIDA HIGHWAY PATROL; Department of Highway Safety and Motor Vehicles; Robert L. Holder, Individually; and Jim Wilson, Individually, Appellees.
• Court: Florida District Court of Appeals

Page 1322

429 So.2d 1322

David Eric WALSTON and William M. Bartleman, Appellants, v. FLORIDA HIGHWAY PATROL; Department of Highway Safety and Motor Vehicles; Robert L. Holder, Individually and Jim Wilson, Individually, Appellees.

No. 82-657.

District Court of Appeal of Florida Fifth District.

April 20, 1983.

Stephen P. Kanar, Orlando, for appellants.

Joseph E. Foster and Roland A. Sutcliffe of Akerman, Senterfitt & Eidson, Orlando, for appellees.

COBB, Judge.

The appellants, David Eric Walston and William M. Bartleman, were plaintiffs below against the Florida Highway Patrol, Department of Highway Safety and Motor Vehicles (FHP). After the jury verdict, ¹ the trial judge granted a defense motion for judgment in accordance with its previous motion for directed verdict pursuant to Florida Rule of Civil Procedure 1.480(b). The judgment then entered for the defendant, FHP, and against Walston and Bartleman, is the subject of this appeal.

The evidence at trial showed that the plaintiffs were injured during the process of a police stop when a third car, driven by a man named Castillo, struck the rear of the police car, propelling it into Bartleman's car, which was parked some eight to ten feet in front of it. Walston and Bartleman, and the two arresting officers, were standing between the cars at the time of collision and suffered severe leg injuries from the crash.

At the trial, Bartleman testified that he was pulled over by a state trooper for speeding. It is uncontroverted that both Bartleman and Walston, his passenger, were intoxicated. Bartleman pulled his car close to the curb on the right side of the road; the police car, with its headlights and emergency lights on, and with blue lights flashing, stopped from six to ten feet behind Bartleman's car.

The arresting officer, Trooper Holder, led Bartleman to the area between the two cars for a field sobriety test. Bartleman failed the test and was told he was under arrest. Holder then went back to his patrol car to use his radio, leaving Bartleman standing between the cars. In the meantime, Walston, the other occupant, had stepped out of the car on its right side into a grassy area beside the road. He was requested to do so by the auxiliary patrolman, Wilson, who was riding with Holder. Walston admittedly was even drunker than Bartleman, and obviously could not drive the car. He was not arrested, and was told to leave, being given directions on how to return (apparently by foot) to his naval base. He did not leave, but followed Wilson into the area between the cars where Bartleman's sobriety test was held. Just as Holder returned from his car to the test area, and began a conversation with the other three, the collision occurred.

Trooper Holder testified that he conducted the field sobriety test in the area between the two cars because it was paved with no obstructions to walking. Holder said he did this to avoid any problem at a subsequent drunk driving trial. There was other traffic on the road, and Holder himself nearly was hit by a passing car as he walked back to his own car. At no time had either trooper warned Bartleman or Walston about the danger of standing between the two cars.

The issue is whether or not the trial judge erred in attributing the sole cause of the accident to the third car driven by Castillo as an intervening cause. The question, then, is whether or not the intervening cause was unforeseeable as a matter of law, justifying judgment by the court contrary to the jury verdict. See Nunziato v. P & L Auto Parts, Inc., 403 So.2d 1031 (Fla. 3d DCA 1981); Pope v. Cruise Boat Co., Inc., 380 So.2d 1151 (Fla. 3d DCA 1980).

The argument of the appellee attempts to avoid this issue by conceding that foreseeability is a jury issue, but contending that this issue does not arise in the absence of any negligence on the part of the defendant or its agents, Holder and Wilson. In other words, the appellee asserts that the trial judge reached the right result for the wrong reason.

We agree that, in the absence of initial negligence on the part of the defendant, it is irrelevant to talk of intervening causation. It is readily apparent that, given initial negligence on the part of the defendant, the issue of the foreseeability of the intervening negligence of Castillo presented a jury issue. See Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla.1980). The true question, then, is whether or not a jury issue was presented in regard to the existence of any causative negligence on the part of Troopers Holder and Wilson.

The record reveals that Trooper Holder admitted that he was taught not to allow people to stand between cars during highway stops; furthermore, he had expressed (to himself) concern for the safety of Bartleman and Walston when he saw them standing between the cars after he had used the radio; Holder initially led Bartleman between the two cars; neither Bartleman nor Walston, both of whom were drunk, was ever warned by either arresting trooper about the danger. These facts were sufficient for submission of the case to a jury, and it was error for the trial judge to supersede the verdict.

The judgment is reversed, and the cause remanded for entry of a judgment in accordance with the jury verdict.

REVERSED and REMANDED.

COWART, J., concurs in part and dissents in part.

JOHNSON, CLARENCE T., Jr., A.J., concurs specially with opinion.

COWART, Judge, concurring in part; dissenting in part:

I agree with the majority opinion as it relates to Bartleman but not as to Walston. The police officers did not cause appellants' injuries. The injuries were caused by Castillo's vehicle striking the parked police vehicle causing it to strike appellants and causing their injury. Therefore, the true issue in this case, in my opinion, is not, as the majority says, whether Castillo's crashing his vehicle into the rear of the stopped police vehicle was an intervening cause, foreseeable as a matter of law, but what duty, if any, did the police officers owe what was that duty, upon what was that duty based and to whom was it owed. The consideration of anything as an "intervening" cause presupposes or assumes negligence on the part of some other actor, which negligence must include the breach of some duty.

Although both appellants appear to be identically situated, i.e., both were injured while intoxicated in the same manner in the same accident and at the same time and place; nevertheless, there is a substantial, controlling difference in the duty that the police officers owed to each and, hence, in appellees' liability. Like everyone else, police officers are liable for negligence only when they neglect some legal duty they owe to someone else to use due care. A person who is more knowledgable, alert and perceptive of danger owes no duty, by virtue of that fact alone, to warn a less knowledgable, less alert and less perceptive citizen. Duty does not arise from foreseeability alone, otherwise those with greater foresight would have to spend all of their time warning those...