DAYANA ST. VIL LOPEZ, Appellant,
YO ROOFING AND ASSOCIATES, INC., a Florida corporation, and SCOTT ALLEN VOORHEES, an individual, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No.
Redavid of Fischer Redavid PLLC, Miami, for appellant.
K. Clark of Clark, Robb, Coulombe, Buschman & Charbonnet,
Miami, for appellee Yo Roofing and Associates.
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.
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
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?
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
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