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Vil Lopez v. Yo Roofing and Associates, Inc.

Florida Court of Appeals, Fourth District

June 27, 2018

DAYANA ST. VIL LOPEZ, Appellant,
v.
YO ROOFING AND ASSOCIATES, INC., a Florida corporation, and SCOTT ALLEN VOORHEES, an individual, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. CACE15-021706 (09).

          Jordan Redavid of Fischer Redavid PLLC, Miami, for appellant.

          James K. Clark of Clark, Robb, Coulombe, Buschman & Charbonnet, Miami, for appellee Yo Roofing and Associates.

          WARNER, J.

         In this appeal from a final judgment finding the defendant not liable in an auto negligence action, appellant contends that the trial court erred in denying a challenge for cause to a prospective juror. We agree that the court erred, where the juror stated that she could not hold an employer vicariously liable for the negligence of an employee, the plaintiff's theory of liability in this case. The challenge should have been granted. We therefore reverse.

         The appellant was involved in an automobile collision with an employee of the appellee, Yo Roofing, who was driving a company truck. She filed suit against the employee for his negligent operation of the vehicle and against Yo Roofing under the theories of vicarious liability and Florida's dangerous instrumentality doctrine. During litigation, the employee died, and the parties agreed to proceed against Yo Roofing only.

         The case proceeded to trial. During jury selection, the parties questioned juror Clark, a retired secretary for a carpet company. She was asked if she could render a verdict against a company whose employee was negligent, as opposed to a verdict against the employee himself. She asked counsel her own question: if the employee was drinking, doing drugs, or had a heart attack, why should the employer be responsible for him or her? The plaintiff's counsel then told her to assume that it was a "he said, she said" situation or an honest accident. Then Plaintiff's counsel asked:

[Plaintiff's counsel]: If you believed by a preponderance of the evidence that the evidence showed that the employee was at fault, could you render a verdict knowing that it was against the employer, if that employee was just-because that employee is in the scope of their employment?
[Clark]: I don't think so.
[Plaintiff's Counsel]: You don't think so?
[Clark]: No.

         During jury selection, appellant challenged Clark for cause, stating that Clark had said she would be uncomfortable rendering a verdict against an employer for the negligence of its employee. After the court and the defense attorney both said they missed that answer of Clark, the court denied the challenge without further inquiry. Because appellant had exhausted her challenges, and the court refused her request for additional peremptory challenges, Clark actually sat on the jury.

         The jury rendered a verdict, finding the employer was not liable. Appellant moved for a new trial, including in her motion portions of the transcript excerpted above. Nevertheless, the trial ...


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