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Mastec North America, Inc. v. Morakis

Florida Court of Appeals, Fourth District

October 2, 2019

KATHLEEN MORAKIS, as Limited Guardian of the Person and Property of MANUEL PEREZ GARCIA, Incapacitated, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No. 50-2013-CA-015176-XXXX-MB.

          Alina Alonso Rodriguez and Wendy F. Lumish of Bowman and Brooke LLP, Miami; and Brian D. Equi and Francis E. Pierce, IV of Goldberg Segalla, LLP, Orlando, for appellants.

          Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach; Steven Kuveikis of Steven Kuveikis, P.A., Jupiter; and John J. Wilke of The Law Office of John J. Wilke, Boca Raton, for appellee.

          Ciklin, J.

         A young man traveling on a bicycle ("the plaintiff") was struck from behind by a van and suffered significant injuries. His guardian brought a negligence suit against the driver of the van and the driver's employer ("the defendants"). Based on a Florida statute barring relief to a plaintiff whose alcohol impairment causes him to be more than 50% at fault for his injuries, the defense introduced evidence of the plaintiff's impairment and sought a jury instruction concerning this defense. Nonetheless, the trial court directed a verdict in the plaintiff's favor on the statutory defense and instructed the jury that the plaintiff's impairment was not a cause of the accident or the plaintiff's injuries. We find the trial court erred and we reverse and remand for a new trial.

         The evidence at trial revealed the following. One morning, Robert Dumas, a driver for MasTec of North America ("the driver"), left his house shortly before 6:00 a.m. to begin his commute to work. He was driving a company van and because it was dark out, had engaged its low beam lights. The driver was traveling north on Military Trail. There was a sidewalk next to the road. The driver shifted from the center lane to the right-hand lane and traveled another 200 yards. Suddenly, he saw a bicycle on the road in front of his van toward the passenger side. The plaintiff was traveling on the bicycle in a northward direction. The driver did not see any reflectors on the bicycle. The driver swerved to the left to avoid the plaintiff but to no avail. The right front headlight of the van struck the rear tire of the bicycle, and the man suffered profound injuries.

         An investigation revealed that the plaintiff was wearing non-reflective clothing as well as dark cowboy boots with a 1¼ inch heel that would have covered the bicycle pedals' reflectors. The bicycle did not have a headlight or taillight. The bicycle had a rear reflector light but there was conflicting testimony as to whether it was properly positioned. The plaintiff had a blood alcohol concentration ("BAC") of .23. He was traveling on Military Trail, a major six-lane road, about four feet from the edge of the road. The street light "across from where the crash occurred" was "not functioning properly," and there were "prolonged period[s] of time" when the light was not on.

         One of the defense experts testified that the operation of a bicycle requires coordination. Bicyclists must "divide their attention between physical and mental tasks." Like drivers of automobiles, bicyclists must also "check . . . everywhere for lane positions, also to see if there's anything else that could be coming into your path of travel."

         A defense expert testified regarding the correlation between an increased BAC and impairment of normal faculties such as the ability to walk and talk, process information, and perceive, appreciate, and react to emergency situations. He described the signs of impairment associated with different ranges of BAC. BACs below .08 would lower inhibitions and negatively affect motor performance. Persons with less alcohol tolerance might exhibit slurred speech and staggering. Reaction time is delayed. With BACs between .08 and .19, these signs would be exhibited "in a greater degree." Loss of judgment would increase, and the ability to operate a bicycle would be negatively impacted. Higher BACs, such as the plaintiff's, would make it even "more difficult to operate a bicycle." A person with a .23 BAC could exhibit confusion, disorientation, dizziness, distorted vision, and lack of coordination. The toxicologist further testified that lowered inhibitions caused by an increased BAC can result in risky behavior. He opined that based on the plaintiff's BAC level, his balance, judgment, decision making, perceptions, and reaction time would have been affected and he likely would have experienced dizziness and lack of coordination.

         At the close of evidence, the trial court granted the plaintiff's motion for directed verdict on the statutory affirmative defense related to the plaintiff's impairment. But the court confirmed that defense counsel could still assert comparative fault: "[T]here's a lot to argue about comparative fault . . . There was no light, the dark clothing, the position of the . . . bicycle, all of those are still fair game in comparative fault." The court made it clear, however, that defense counsel could not argue "that any of that occurred or happened due to" the plaintiff's intoxication, finding that there was "no evidence to show that the intoxication led to him wearing the dark clothing, not having the light on the back of the bike."

         Over defense objection, the jury was specifically instructed that the plaintiff's "alcohol consumption did not cause or contribute to the occurrence of this accident or [the plaintiff's] injuries." But it was also instructed that it must decide "whether [the plaintiff] was negligent and, if so, whether that negligence was a contributing legal cause of his injuries and damages."

         The jury returned a verdict for the plaintiff but found he was 40% at fault.

         On appeal, the defendants argue that there was evidence that the plaintiff's BAC level contributed to the accident, and thus the trial court erred in directing a verdict on their statutory defense. They point to the evidence of the plaintiff's comparative negligence and the expert witnesses' testimony as to what faculties are necessary to operate a bicycle and how these faculties and others would be affected by a .23 BAC. Claiming that the ...

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