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Publix Super Markets, Inc. v. Olivares

Florida Court of Appeals, Fourth District

January 8, 2020

MONICA OLIVARES, individually, and as Personal Representative of the ESTATE OF ALBERTO OLIVARES, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE18-006314.

          Edward G. Guedes and Adam M. Hapner of Weiss Serota Helfman Cole and Bierman, P.L., Coral Gables, for petitioner Publix Supermarkets, Inc.

          Cindy J. Mishcon of Lewis Brisbois Bisgaard & Smith LLP, Fort Lauderdale, for petitioner Randolph Sapp.

          Raymond Valori, Michael Freedland and Melissa Gunion of Freedland Harwin Valori, P.L., Fort Lauderdale, and Kara Rockenbach Link and Daniel M. Schwarz of Link & Rockenbach, P.A., West Palm Beach, for respondent.

          Warner, J.

         Petitioners seek a writ of prohibition to disqualify the trial judge from presiding in this negligence case involving a claim of punitive damages. They claim that the judge is biased against them on an issue central to their defense on the punitive damage claim. After careful review of the transcripts of proceedings, we deny the writ. We conclude that the comments, taken in context, do not create a reasonable fear that the judge is biased or had prejudged the issues involved.

         This petition arises in an underlying wrongful death case. The Respondents/plaintiffs (the decedent's spouse and his estate, hereinafter referred to as plaintiffs) allege that the decedent was driving his car through an intersection on a green light, while petitioner/defendant Randolph Sapp was driving a Publix delivery truck on a cross street approaching a red light at the same intersection. Sapp, who was on his cell phone at the time, drove through the red light and collided with the decedent's car, causing his death. Plaintiffs alleged that cell phone use by the driver contributed to distracting the driver, causing the accident.

         After two hearings, one on the plaintiffs' motion to amend to claim punitive damages, petitioners Publix and Sapp filed a motion to disqualify the trial judge based upon several comments made during the hearings. They claim that these comments show the court's bias against their position that the hands-free use of a cell phone, or a policy permitting it, does not justify punitive damages, because cell phone use in a vehicle is not prohibited by law. The judge, who had encountered the issue of cell phone use in other cases, engaged defense counsel in questioning based upon the Socratic method, posing hypotheticals to test the defense argument. The judge ruled against petitioners and granted the motion to amend to add a claim of punitive damages.

         In this petition, we do not address whether the judge was right or wrong as a matter of law in allowing the claim for punitive damages. We only address whether the judge should be disqualified because of the comments made on the issue throughout the hearing.

         To clearly understand the comments made, we recite at length the proceedings at both hearings. The comments with which the Petitioners take issue are bolded for understanding by the reader.

         The plaintiffs filed their initial complaint against Sapp and Publix in March 2018. Publix moved for summary judgment on some issues, but at a hearing in February 2019, plaintiffs sought to continue or for the court to deny the motion because of outstanding discovery. During that hearing, plaintiffs' attorney noted he was requesting T-Mobile records. The judge queried whether they knew that Sapp was on the phone, and counsel stated they knew Sapp was on the phone at the time of the accident. Counsel then stated:

MR. VALORI: We know he was on the phone, we're trying to figure out whether he was on the phone during the other 7 or 8 accidents that he had.
THE COURT: Publix doesn't have a policy about talking and driving?
MR. RUFF: Publix has a policy that says you follow, it's a federal note[] of safety act, and that is, you could be on the phone but it has to be hands free. There's no evidence, in this case, that the use of the phone, in this accident, was anything other than hands free.
MR. VALORI: That's part of the story, your Honor.
THE COURT: Are you going to change that policy, at some point?
MR. RUFF: That's nothing I could speak to and I would charge if they asked me for an opinion on that.

Defense counsel went on to argue other matters, and the court ultimately denied the motion without prejudice because of the outstanding discovery. The defense did not move to disqualify the judge for this single comment.

         In April 2019, after conducting extensive additional discovery, the plaintiffs moved to amend the complaint to plead punitive damages, presenting proffers of evidence from depositions and exhibits. The plaintiffs argued that Sapp could be held liable for punitive damages because he was grossly negligent-his conduct was "so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." § 768.72(2)(b), Fla. Stat. (2018). The plaintiffs alleged that Sapp was speeding and inattentive. He was talking on his cell phone while driving, "for the expressed purpose of distracting himself from the driving task," which he did "continually and habitually." As to Publix, the plaintiffs argued that the company could be held liable for punitive damages because it "actively and knowingly participated" in Sapp's conduct, "knowingly condoned, ratified, or consented" to Sapp's conduct, and itself "engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by [the plaintiffs]." § 768.72(3), Fla. Stat. (2018). The plaintiffs alleged that Publix negligently trained Sapp and "ratified" his cell phone use and speeding.

         At a hearing in June, the parties sought to address both a renewed motion for summary judgment by Publix with respect to claims of negligent hiring and retention, and the plaintiffs' motion to amend to add a claim for punitive damages. Publix posited that because it conceded Sapp was within the course and scope of his employment at the time of the accident, there could be no cause of action for negligent hiring and retention, as those causes of action were limited to circumstances where an employee was acting outside the scope of employment. The judge questioned counsel on that and posed a hypothetical regarding drinking:

THE COURT: Let's go back to my initial question. Are you telling me you cannot have conduct that is both within and without the course and scope of employment at the same time?
MR. RUFF: I believe that would be correct, Your Honor. But that's not an issue.
THE COURT: What if he were drinking?
MR. RUFF: If he were drinking and we challenged it, it would be a question of fact for the jury, whether he was inside or outside the course and scope. Here, there is no challenge. They're admitting he was inside the course and scope.

         The judge and Publix's attorney continued to debate the validity of the negligent retention claim and course and scope of employment, using the drunken employee hypothetical, until plaintiffs' counsel suggested that he proffer the evidence to support the punitive damage claim to explain the context of the direct liability claims and punitive damage claim against both Sapp and Publix. He then made an extensive proffer.

         The plaintiffs maintained that Sapp was grossly negligent. The proffered evidence showed that he was driving downhill on a curved road, approaching a red light in a residential neighborhood with a forty-mile-per-hour speed limit. He was driving fifty-one miles per hour one minute before the accident but slowed to forty-four miles per hour immediately before impact. He was "oblivious to the red light" because he was talking on his cell phone to a friend (and fellow Publix truck driver), which he did "pretty much continuously" throughout the day. He ran the red light, causing the accident. The decedent's car was the second car through the intersection, showing how flagrantly Sapp disobeyed the red light signal.

         An expert on commercial trucking explained how commercial drivers required special training and special licensing for driving rigs weighing as much as 80, 000 pounds. The plaintiffs presented evidence that Publix specially trains its truck drivers on managing speed, looking ahead at traffic, scanning at intersections, paying attention to their surroundings, and avoiding distracted driving. A truck driver "is required to exhibit a higher level of skill than a driver of a regular car." Video clips from these training sessions were played in court. The plaintiffs' attorney then laid out how this training and Publix's cell phone policy were inconsistent. While training emphasized speed management, scanning and attentiveness, particularly at intersections, and avoiding distractions, Publix also permitted hands-free cell phone use.

These things [speed, scanning, attentiveness] are interrelated concepts, and they build on each other. There's a wealth of evidence here, Your Honor, that both show that Publix knew that its policy [allowing cell phone use] was highly dangerous, and that everyone here knew that this man shouldn't have been talking on the phone and certainly shouldn't have been talking on the phone all day long. He shouldn't have been speeding; he shouldn't have been speeding on a curve; he shouldn't have been speeding when he approached the intersection; and he certainly should be scanning, which he wasn't because he didn't see Mr. Olivares until the very last second.

         Even Sapp confirmed in his deposition that he had not abided by his training when he was speeding, particularly around a curve and through an intersection. The Publix fleet safety specialist agreed in his deposition ...

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