$______ RECOVERY - MOTOR VEHICLE NEGLIGENCE - HEAD-ON COLLISION - MULTIPLE FEMUR FRACTURES - TRAUMATIC BRAIN INJURY - DEFENDANT DENIES NEGLIGENCE AND ARGUES PLAINTIFF NOT WEARING SEATBELT CAUSE OF INJURIES - PARTIES SETTLE VIA MEDIATION PRIOR TO TRIAL.

• Pages: 8-9

of the past criminal incidents permitted to be admitted included

acts of vandalism, some of a domestic nature, and even one involv-

ing an alleged altercation that started when an individual followed

others from a totally separate offsite bar and into a parking lot uti-

lized by some of the defendant’s customers. Furthermore, several

police reports concerned altercations which occurred in this “park-

ing lot” but there was never any evidence to establish the defen-

dant controlled or even owned this parking lot, but merely inferred

control based on its use by the defendant’s customers. The

defendant maintained that the admission of irrelevant crime data

caused undue and unfair prejudice to the defendant, which

warranted the granting of a new trial.

The plaintiff opposed the defendant’s motion, arguing that there

was nothing raised in the motion that had not already been raised

and ruled upon during the trial. At trial, the defendant argued that

Stewart v. Draleaus, 226 So.3d 990 (Fla. 4th DCA 2017), supported

a Section 768.36(2) defense. As pointed out at trial, the issue in

Stewart was the admissibility of evidence of pre-accident alcohol

consumption by a motorcyclist. Stewart held the exclusion of evi-

dence of pre-accident alcohol consumption was erroneous. In this

case, there was no exclusion of any evidence. The evidence adduced

at trial indicated that earlier in the evening, the plaintiff had gone

to a birthday dinner for a friend. The exact time was unknown, but

was hours prior to the incident, somewhere around sundown. The

plaintiff drove his neighbors and their daughters to dinner. At din-

ner, he drank only one or two beers because he knew he’d be driv-

ing. He drove his neighbor, a teetotaler and his neighbor’s entire

family home. Sometime after 1:00 a.m., the plaintiff went to the

defendant’s bar, where he drank one beer prior to the incident.

Sergeant Justin Allen of the Deland Police Department testified

that he responded to the incident, and was in close proximity to the

plaintiff, both observing him and speaking with him. He testified

that the plaintiff exhibited no signs of intoxication, and that he

would have let him drive, but for his injury. He did not observe any

signs of alcohol impairment in the plaintiff at the scene. Section

768.36(2)(a) requires proof the plaintiff was under the influence of

any alcoholic beverage or drug to the extent that the plaintiff’s

normal faculties were impaired or the plaintiff had a blood or

breath alcohol level of 0.08 percent or higher. There was no evi-

dence in this case that the plaintiff had a blood or breath-alcohol

level of 0.08 percent or higher. There was no evidence in this case

the plaintiff was under the influence of any alcoholic beverage “to

the extent that the plaintiff’s normal faculties were impaired.” The

evidence in support of a 768.36(2) defense also included: One of

the defense experts testified that the operation of a bicycle requires

coordination. Bicyclists must “divide their attention between physi-

cal and mental tasks.” Like drivers of automobiles, bicyclists must

also.. [288 So.3d at 687]. MasTec found it an error to specifically

instruct the jury that the plaintiff’s “alcohol consumption did not

cause or contribute to the occurrence of this accident or [the plain-

tiff’s] injuries.” No such negative instruction was given in this case.

The defense was free to argue comparative fault and causation

based on the evidence. The plaintiff was not riding a motorcycle or

a bicycle nor operating a motor vehicle. As the court determined at

trial, the plaintiff argued, there was a failure of proof to support a

Section 768.36(2) defense.

With regard to evidence of prior incidents, the plaintiff maintained

that the evidence of all the prior incidents was admissible under

well settled law. There was an unbroken line of case law to support

the court’s ruling, dating from 1977, including the most recent case

from the Florida Supreme Court, Sanders v. ERP Operating Limited

Partnership, 157 So.3d 273 (Fla. 2015) (negligent security liability

was premised primarily on a history of non-violent incidents). Ad-

ditionally, Rosier v. Gainesville Inns Associates, Ltd, 347 So.2d

1100 (Fla. 1st DCA 1977), was a case where foreseeability of as-

sault on plaintiff was established with proof of prior property

crime. Hardy v. Pier 99 Motor Inn, 664 So.2d 1095, 1098 (Fla. 1st

DCA 1995) held the requirement of “proof that the hotel had

knowledge of prior similar violent criminal acts” was error. As well

as many other cases including Czerwinski v. Sunrise Point Condo-

minium, 540 So.2d 199 (Fla. 3d DCA 1989) (five year history of

criminal activity relevant); Odice v. Pearson, 549 So.2d 705, 706

(Fla. 4th DCA 1989) (“In order for a jury to determine if a property

owner took reasonable precautions to protect persons on or about

the premises from foreseeable criminal activity, a plaintiff must be

given the opportunity to establish the type of neighborhood where

the incident took place”). The plaintiff asserted that the bottom

line was easily stated: Evidence as to the nature and likelihood of

any crime occurring has a direct bearing on whether the preventive

measures taken by the property owner were reasonable in light of

all the other relevant facts and circumstances in the case. [e.s.]

Odice v. Pearson, 549 So.2d 705, 706 (Fla. 4th DCA 1989). The

court’s ruling at trial on the admissibility of prior incidents was

proper and should not be disturbed. The motion is set for hearing.

$3,250,00 RECOVERY – MOTOR VEHICLE NEGLIGENCE – HEAD-ON COLLISION –

MULTIPLE FEMUR FRACTURES – TRAUMATIC BRAIN INJURY – DEFENDANT DENIES

NEGLIGENCE AND ARGUES PLAINTIFF NOT WEARING SEATBELT CAUSE OF INJURIES

– PARTIES SETTLE VIA MEDIATION PRIOR TO TRIAL.

Hunterdon County, NJ

In this motor vehicle negligence case, the plaintiff

asserted that the defendant driver, operating a

tow truck owned by the co-defendant service

station, struck the plaintiff’s vehicle with such

force that it caused significant, permanent injury.

The defendants denied negligence, arguing that

the plaintiff was responsible for his own injuries

by virtue of the fact that he was not wearing a

seatbelt at the time of the collision. The

defendants maintained that the plaintiff’s

negligence was greater than that of the

defendants, and thus, the plaintiff was barred

from recovery.

On June 28, 2015, the plaintiff was traveling north-

bound on Klinesville Road at the intersection with

Strawberry Lane in Raritan. The defendant driver was

operating a tow truck, owned by the defendant ser-

vice center, in the course of his employment. The de-

fendants’ vehicle was traveling southbound on

Klinesville Road. The plaintiff contended that the de-

fendant negligently lost control of the vehicle,

8 SUMMARIES WITH TRIAL ANALYSIS

Volume 37, Issue 5, May 2022 Subscribe Now