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