MASTEC NORTH AMERICA, INC. and ROBERT W. DUMAS, Appellants,
KATHLEEN MORAKIS, as Limited Guardian of the Person and Property of MANUEL PEREZ GARCIA, Incapacitated, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Lisa S. Small, Judge; L.T. Case No.
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.
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,
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.
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.
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.
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
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.
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."
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."
jury returned a verdict for the plaintiff but found he was
40% at fault.
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 ...