Newsome Melton Obtains $25.9 Million Verdict against Ford and The Baptist Church of New Port Richey for Single Wrongful Death

Florida Decision Weekly Wrap-up 2/5

February 8, 2010

Florida Decision Weekly Wrap-up 2/5

ITIAT v. FOSKEY, Case No. 1D09-2069. 1st DCA (February 5, 2010)

(Torts. Wrongful Death. Summary Judgment)

In the underlying action, the Plaintiff filed suit after her husband died in an accident in which his vehicle rear-ended tow truck on Interstate 10 under wet highway conditions. The Defendant below filed a motion for summary judgment based on the presumption of negligence of the rear end driver in a rear end collision. The trial court granted the summary judgment motion stating that the Plaintiff had “failed to provide . . . evidence sufficient to overcome the presumption of negligence imposed on the rear driver in a rear-end collision” (citation omitted).

According to the 1st DCA, the trial court relied on Clampitt v. D. J. Spencer Sales, 786 So. 2d 570 (Fla. 2001), and Tozier v. Jarvis, 469 So. 2d 884 (Fla. 4th DCA 1985), both of which held that a rebuttable presumption of negligence on the part of the rear driver arises in rear-end collision cases and, thus, the rear driver has the burden to present evidence that “fairly and reasonably tends to show’ that the presumption of negligence is misplaced.” (citation omitted). However, the 1st DCA stated that, once the rear driver presents such evidence, the presumption dissipates, and the case must go to the jury “to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence.” (citations omitted). The court stated that there are three general categories of explanations that have been held to rebut the presumption of negligence: 1) an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected change of lanes . . . ; 2) a mechanical failure, i.e., sudden brake failure, that causes the rear driver to collide with the lead driver . . . ; and 3) the lead vehicle is illegally and, therefore, unexpectedly stopped.” Id. at 649-50 (citations omitted). The court concluded that genuine issues existed as to whether the Defendant suddenly changed lanes and reduced his speed and therefore reversed.

Related Topics:

x
OVER $500,000,000 recovered
Newsome Melton has recovered over half a billion dollars for their clients.

FREE CASE REVIEW