Court of Appeal of Florida, Third District

December 14, 2022, Opinion Filed

No. 3D21-1822

Reporter

2022 Fla. App. LEXIS 8856 *; 2022 WL 17659784

Natalie Saunders-Pinnock, Appellant, vs. Colonial Freight Systems, Inc., Appellee.

Notice: NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

Prior History:  [*1] An Appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge. Lower Tribunal No. 15-30283.

Core Terms

trailer, tractor, summary judgment, tractor-trailer, ownership, dangerous instrumentality, issue of fact, trial court, adduced, grant summary judgment, rebuttable presumption, vicarious, rebutted, driving, license, triable, plate, truck, words

Case Summary

Overview

HOLDINGS: [1]-The owner of the trailer portion of a tractor-trailer was properly granted summary judgment because plaintiff’s proffered evidence regarding the trailer failed to establish a triable issue of fact regarding ownership or operation of the tractor, and the trailer was itself not a dangerous instrumentality.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Evidence > Inferences & Presumptions > Presumptions > Creation

Torts > Vicarious Liability > Employers > Activities & Conditions

Evidence > Inferences & Presumptions > Presumptions > Rebuttal of Presumptions

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN1  Presumptions, Creation

Where a defendant’s name appears on a commercial vehicle involved in an accident, there is a rebuttable presumption that the vehicle is owned by the defendant and that the operator of the vehicle is an employee of the defendant, and was, at the time of the accident, engaged in the scope of his employment and in the furtherance of the business of the master. However, a rebuttable presumption is just that—rebuttable. Where the defendant rebuts the presumption, and no other evidence exists, no issue of fact remains for the jury.

Evidence > Inferences & Presumptions > Presumptions > Creation

HN2  Presumptions, Creation

As in the case of any presumption, it is decisive only in the absence of contrary evidence. When substantial evidence contrary to a presumption is introduced, the underlying facts that originally raised the presumption may or may not retain some degree of probative force as evidence but they no longer have any artificial or technical force; in other words, the presumption falls out of the case. It never had and cannot acquire the attribute of evidence in the claimant’s favor. Its only office is to control the result where there is an entire lack of competent evidence.

Civil Procedure > Trials > Judgment as Matter of Law > Directed Verdicts

HN3  Judgment as Matter of Law, Directed Verdicts

When the evidence adduced as to the material issues in a cause is not conflicting, and the evidence does not afford a sufficient legal basis for a verdict for the plaintiff, the trial judge may direct a verdict for the defendant. A party is required to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.

Torts > Vicarious Liability > Employers > Activities & Conditions

Torts > Vicarious Liability > Bailees

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN4  Employers, Activities & Conditions

The well-settled principle is that a trailer itself is not a dangerous instrumentality. The trailer portion of a tractor-trailer rig is not a dangerous instrumentality for the purpose of applying the vicarious liability policy.

Counsel: Law Offices of Anidjar & Levine, P.A., and Glen B. Levine (Fort Lauderdale), for appellant.

Traub Lieberman Straus & Shrewsberry LLP, and Scot E. Samis (St. Petersburg), for appellee.

Judges: Before SCALES, LINDSEY and BOKOR, JJ.

Opinion by: BOKOR

Opinion

BOKOR, J.

Natalie Saunders-Pinnock appeals final summary judgment entered in favor of Colonial Freight Systems, claiming the trial court erred in concluding that (1) Saunders-Pinnock failed to create an issue of fact regarding Colonial Freight’s ownership or operation of a tractor pulling the trailer, and (2) the trailer, owned by Colonial Freight, was itself not a dangerous instrumentality. Based on the record, the applicable summary judgment standard, and the law regarding the dangerous instrumentality doctrine, we conclude the trial court correctly granted summary judgment in favor of Colonial Freight.

On May 2, 2015, while driving on Interstate 95 near the Miami-Dade/Broward county line, a tractor-trailer collided with Saunders-Pinnock’s vehicle. The tractor-trailer didn’t stop. Saunders-Pinnock followed and took pictures of the license plate of the trailer [*2]  portion of the tractor-trailer. After some forensic work, she identified a license plate number for the trailer connected to Colonial Freight. She also testified that the trailer bore the initials of the trucking company, CFS.

Colonial Freight moved for summary judgment, claiming that Saunders-Pinnock’s proffered evidence regarding the trailer fails to establish a triable issue of fact regarding ownership or operation of the tractor. The letters on the side of a trailer may create a rebuttable presumption as to ownership or operation of the tractor, but Colonial Freight rebutted that presumption by submitting uncontroverted evidence that no Colonial Freight driver or tractor was in the vicinity of the accident.¹ In a similar situation, the Second District concluded that “such presumption was rebuttable and ‘vanished’ when uncontradicted evidence showed that the trailer did not in fact belong to [the defendant].” Powell v. Henry, 224 So. 2d 730, 732 (Fla. 2d DCA 1969). With the rebuttable presumption rebutted, and no further evidence adduced to create an issue of fact, there’s no evidence from which a factfinder could conclude that Colonial Freight owned or operated the tractor portion of the tractor-trailer.

Saunders-Pinnock insists that conflicting material facts exist, precluding entry of summary judgment. See Mercury Cab Owners’ Ass’n v. Jones, 79 So. 2d 782, 784 (Fla. 1955) (“The question of whether the presumption was overcome by the evidence introduced by the [defendant] . . . is ordinarily one of fact for the jury.”). HN2 However, in the same opinion the Florida Supreme Court explained:

[A]s in the case of any presumption, it is decisive only in the absence of contrary evidence. When substantial evidence contrary to a presumption is introduced, the underlying facts that originally raised the presumption may or may not retain some degree of probative force as evidence but they no longer have any artificial or technical force; in other words, the presumption falls out of the case. It never had and cannot acquire the attribute of evidence in the claimant’s favor. Its only office is to control the result where there is an entire [*4]  lack of competent evidence.

Id. (citations and quotations omitted). In the face of Saunders-Pinnock’s inability to adduce any evidence as to the ownership of the tractor, the trial court appropriately granted summary judgment. See Anderson v. S. Cotton Oil Co., 73 Fla. 432, 74 So. 975, 977 (Fla. 1917) (HN3[] “When the evidence adduced as to the material issues in a cause is not conflicting, and the evidence . . . does not afford a sufficient legal basis for a verdict for the plaintiff, the trial judge may direct a verdict for the defendant.); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (requiring that a party “make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”); see also In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 192 (Fla. 2020) (“[T]he federal summary judgment standard ‘mirrors’ the standard for a directed verdict.”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (Fla. 1986)).

HN4 With no triable issue remaining regarding the ownership or operation of the dangerous instrumentality—the tractor—we reiterate the well-settled principle that the trailer itself isn’t a dangerous instrumentality. See Pullman v. Johnson, 543 So. 2d 231, 231 (Fla. 4th DCA 1987) (“The trailer portion of a tractor-trailer rig is not a dangerous instrumentality for the purpose of applying the vicarious liability policy enunciated in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).”); see also Edwards v. ABC Transp. Co., 616 So. 2d 142, 144 (Fla. 5th DCA 1993) (affirming entry of final summary judgment [*5]  in favor of owner of semi-trailer relying on Pullman); Ranger Nationwide, Inc. v. Cook, 519 So. 2d 1087, 1088 n.2 (Fla. 3d DCA 1988) (citing Pullman and noting that in resolving jurisdictional questions “[i]t is not meant to suggest that the owner or lessee of a trailer may be substantively, vicariously liable for the negligent operation of the truck combination of which it is only a part”). In other words, unless Saunders-Pinnock could allege a cause of action based on the trailer alone, there’s no basis for Colonial Freight’s liability for the accident caused by the alleged negligent driving of the tractor.

Affirmed.

End of Document

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¹ HN1 Florida has adopted the reasoning of the Fifth Circuit that:

[W]here a defendant’s name appears [*3]  on a commercial vehicle involved in an accident, there is a rebuttable presumption that the vehicle is owned by the defendant and that the operator of the vehicle is an employee of the defendant, and was, at the time of the accident, engaged in the scope of his employment and in the furtherance of the business of the master.

Jack Cole Co. v. Hudson, 409 F.2d 188, 192 (5th Cir. 1969); accord Carrazana v. Coca Cola Bottling Co., 375 So. 2d 345, 346 (Fla. 3d DCA 1979). However, a rebuttable presumption is just that—rebuttable. Where, as here, the defendant rebuts the presumption, and no other evidence exists, no issue of fact remains for the jury.

United States District Court for the Eastern District of Michigan, Southern Division

December 7, 2022, Decided; December 7, 2022, Filed

Case No. 2:21-cv-12026

Reporter

2022 U.S. Dist. LEXIS 220615 *; 2022 WL 17489149

MALORY ZAJDEL and ADAM ZAJDEL, Plaintiffs, v. EXEL INC., and MATTHEW PAUL BOHLAND, Defendants.

Core Terms

driving, summary judgment, fault, truck, comparative negligence, miles per hour, trailer, brake, material fact, speed limit, genuine, speed, distracted, collision, crash

Counsel:  [*1] For Malory Zajdel, Adam Zajdel, Plaintiffs: Jeffrey A. Danzig, The Johnson Law Firm, Detroit, MI.

For Exel Inc., a Foreign Corp. d/b/a DHL Supply Chain (USA), Matthew Paul Bohland, Defendants: Roderick Joseph-Morton Fracassi, Plunkett Cooney, Detroit, MI.

Judges: HONORABLE STEPHEN J. MURPHY, III, United States District Judge.

Opinion by: STEPHEN J. MURPHY, III

Opinion        

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [14]

Plaintiffs Malory Zajdel and her husband Adam Zajdel sued Defendants Exel Incorporated and Matthew Bohland for negligence and loss of consortium. ECF 1. After discovery closed, Defendants jointly moved for summary judgment. ECF 14. The parties briefed the motion. ECF 15; 16. The Court will grant the motion for the reasons below.¹

BACKGROUND

Plaintiff Malory Zajdel was driving a 2004 Buick LeSabre on Van Dyke Road in Warren, Michigan when she collided with a freight truck and trailer driven by Defendant Bohland, an employee of Defendant Exel. ECF 14-3, PgID 84-85; ECF 14-5, PgID 95. Zajdel crashed into the rear axle of the trailer as Bohland was turning left out of a car dealership driveway. ECF 14-5, PgID 92, 94. At the time of the crash, Zajdel was driving forty-three miles per hour. ECF 15, [*2]  PgID 146. The speed limit was thirty-five miles per hour. Id. at 147; ECF 14-5, PgID 92.

At the time of the accident, Bohland had been making deliveries to that car dealership five days per week since 2014. ECF 14, PgID 64; ECF 14-5, PgID 97. Bohland saw two vehicles in the oncoming traffic lanes before he pulled out of the driveway, but given his experience with the route, he believed he “had enough time to pull [out] of the driveway and did not observe any [vehicles] close to him.” ECF 14- 3, PgID 85. After the accident, Bohland’s supervisor cited him for poor work performance and concluded that he did not allow enough space between himself and the approaching traffic. ECF 15-7, PgID 213.

Zajdel admitted she had looked down at her dashboard clock for two or three seconds before the collision. ECF 15-2, PgID 172. She first saw the truck and trailer when she looked up from her dashboard. Id. She claimed she had lifted her leg to attempt braking. ECF 15-12, PgID 249. Robert Tharpe, a witness to the accident who was driving a semi-tractor bobtail² next to Zajdel at the time of the crash, said that Zajdel “never hit the brakes.” ECF 14-5, PgID 97; ECF 15, PgID 146.

LEGAL STANDARD

The Court [*3]  must grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A moving party must point to specific portions of the record that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the non-moving party may not simply rest on the pleadings but must present “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (emphasis omitted) (quoting Fed. R. Civ. P. 56(e)).

A fact is material if proof of that fact would establish or refute an essential element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over material facts is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences “in the light most favorable to the non-moving party.” 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987) (citations omitted).

DISCUSSION

Defendants moved for summary judgment on the basis that no reasonable juror could find Bohland more at fault than Zajdel. ECF 14, PgID 67. Defendants contended that Zajdel was more than 50% at fault [*4]  because she exceeded the speed limit, drove while distracted, and failed to take “any evasive action.” Id. at 61, 67-70. Defendants also argued that Zajdel forfeited her right-of-way by speeding. Id. at 71-72. Viewing the evidence in the light most favorable to the non-moving party, Defendants have met their burden of showing “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.

The Court will first detail Michigan’s comparative negligence system. After, the Court will explain why Defendants’ motion for summary judgment prevails.

I. Comparative Negligence

Michigan uses a system of comparative negligence. Placek v. City of Sterling Heights, 405 Mich. 638, 656-60, 275 N.W.2d 511 (1979) (abandoning contributory negligence and adopting comparative negligence). “Comparative negligence is an affirmative defense adopted to promulgate a fair system of apportionment of damages.” Riddle v. McLouth Steel Prods. Corp., 440 Mich. 85, 98, 485 N.W.2d 676 (1992) (cleaned up).

Under Michigan’s comparative negligence statute, “[d]amages must be assessed on the basis of comparative fault, except that damages must not be assessed in favor of a party who is more than 50% at fault.” Mich. Comp. Laws § 500.3135(2)(b). The statute instructs that “[t]he standards for determining the comparative negligence of a plaintiff are the same as those of a defendant—the jury must consider the nature of the [*5]  conduct and its causal relationship to the damages—and the question is one for the jury unless all reasonable minds could not differ or because of some ascertainable public policy consideration.” Laier v. Kitchen, 266 Mich. App. 482, 496, 702 N.W.2d 199 (2005).

Here, the parties’ disagreement turns on causation. “In order to prove causation, [a] plaintiff must show both cause in fact and proximate cause. Cause in fact requires plaintiff to show that her injuries would not have occurred but for defendants’ negligent conduct.” Zdrojewski v. Murphy, 254 Mich. App. 50, 63, 657 N.W.2d 721 (2002) (internal citation omitted). “On the other hand, legal cause or ‘proximate cause’ normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.” Skinner v. Square D Co., 445 Mich. 153, 163, 516 N.W.2d 475 (1994) (citations omitted). Both cause in fact and proximate cause are generally reserved for a jury, “but if there is no issue of material fact, the question may be decided by the court.” Genna v. Jackson, 286 Mich. App. 413, 418, 781 N.W.2d 124 (2009) (citation omitted).

II. Summary Judgment

Summary judgment is warranted here because no genuine issues of material fact exist about whether Bohland or Zajdel was more than 50% at fault in causing the accident. See Mich. Comp. Laws § 500.3135(2)(b).

In short, the evidence shows that Zajdel was more at fault in causing the accident. For one, Zajdel was driving [*6]  forty-three miles per hour in a thirty-five miles per hour speed limit zone. ECF 15, PgID 146-47. She argued that her excessive speed was immaterial based on her expert Timothy Robbins’s opinion that the speed limit should have been forty-five miles per hour. ECF 15-12, PgID 263. But expert opinions are not facts of the case. Fed. R. Evid. 702 (requiring expert opinions to be “based on sufficient facts or data”); see also Sanford v. Russell, 387 F. Supp. 3d 774, 780 (E.D. Mich. 2019) (stating that “an expert’s opinion must be based on the actual facts of the case”). And Robbins cited only his own research as the basis for his opinion. ECF 15-12, PgID 263, 271-73. In particular, Robbins cited a speed study he conducted that showed that the eighty-fifth percentile of drivers traveled at forty-six miles per hour. Id. at 263. The speed study did not contain a methodology summary or data about the conditions on the road at the time the study was conducted. See id. at 263, 271-73. It merely stated the speed study’s unverified conclusions. Robbins also failed to comply with the parameters for establishing a speed limit under Michigan law, which requires both an engineering study and a safety study to approve a new speed limit. See Mich. Comp. Laws § 257.628(5). In sum, Robbins’s speed study is unverified and unpersuasive, [*7]  and Zajdel’s reliance on it was misplaced.

Zajdel also failed to take any evasive action, which suggests she was driving while distracted. Indeed, she admitted to looking at her dashboard clock for “[two] to [three] seconds” before crashing into Bohland’s truck and trailer. ECF 15-2, PgID 172. What is more, Bohland’s truck and trailer was, according to Bohland’s expert Sebastian van Hooten, a significant distance away from Zajdel’s car at the time Bohland began pulling into the road. ECF 14-5, PgID 100 (noting that if Zajdel was driving forty-three miles per hour, “her Buick would have been at least 378 feet away when Mr. Bohland began moving forward”). Zajdel therefore did not need to brake hard; she needed only to brake enough to avoid colliding with Bohland. Yet Zajdel “never applied the brakes prior to impact.” Id. at 99. Unlike Webb v. City of Detroit, No. 348510, 2020 Mich. App. LEXIS 5996, 2020 WL 5495276, at *7 (Mich. Ct. App. Sept. 10, 2020), in which summary judgment was denied because multiple witnesses had differing opinions about the defendant’s failure to take evasive action and it was unclear whether the defendant had seen the plaintiff’s vehicle at night, there is only one witness here, the accident happened in broad daylight, and Zajdel admitted to seeing the truck and trailer once [*8]  she looked up from her dashboard. ECF 14-3, PgID 84; ECF 15-2, PgID 172; ECF 15-3, PgID 181. All told, Zajdel is more than 50% at fault because she was driving while distracted and failed to brake or take evasive action.

The size of Bohland’s truck and trailer also suggests that Zajdel was driving while distracted. Indeed, the truck was “approximately 66 feet long and 12.5 feet high[] and traveling across her path” in broad daylight. ECF 14-3, PgID 84 (crash report); ECF 14-5, PgID 101 (expert findings). A vehicle of that size traveling in the daylight would be obvious to an oncoming driver. See Fields v. Ashford, No. 17-cv-11812, 2020 U.S. Dist. LEXIS 61583, 2020 WL 1703876, at *4 (E.D. Mich. Apr. 8, 2020) (noting that there were “reasons to doubt [the plaintiff’s] testimony that she did not see [the defendant’s] 74,000-pound semi-truck merging into her lane of traffic on a flat stretch of highway in broad daylight”).³

What is more, Robert Tharpe, who was driving next to Zajdel at the time of the collision, was able to stop in time to avoid a collision. ECF 15-3, PgID 181 (“I had plenty of time to stop and . . . I was shocked that she didn’t stop.”). Tharpe was driving a large truck in the lane next to Zajdel and keeping pace with her. Id. His truck was the only other vehicle in [*9]  Zajdel’s vicinity at the time of the collision. Id. Tharpe testified that Zajdel “had plenty of time to stop” and “couldn’t believe she did not even hit the brakes.” Id. at 180. That Tharpe was able to stop in time to avoid a collision further suggests that Zajdel was driving while distracted and supports a finding that she is more than 50% at fault.

Bohland, on the other hand, was substantially less at fault than Zajdel. For one, his experience making the turn at issue suggests he was familiar with the time and space required to complete the turn. Bohland had been making the turn five days a week since 2014, totaling over 1,000 times. ECF 14, PgID 64; ECF 14-5, PgID 102. He therefore “would have been well aware of how his tractor-trailer accelerated and the time it would have taken to complete the turn.” ECF 14-5, PgID 102. Bohland saw the two vehicles in the oncoming lane and, although he could not recall whether they were stationary or moving, he believed he “had plenty of space” to pull into the road. ECF 15-4, PgID 193.

To suggest that Bohland knew he did not have enough time to make the turn, Zajdel highlighted Bohland’s post-accident statement that he should “[g]ive more time [*10]  when entering” a busy road. ECF 15, PgID 149; ECF 15-6, PgID 204. But Bohland’s statement was not an admission that he did not have enough time or space to make the turn. Rather, it was a response to a question about how he could “avoid this type of accident in the future.” ECF 15-6, PgID 204.

Taken together, the evidence supports the finding that reasonable minds could not differ on whether Zajdel was more than 50% at fault for the accident. Mich. Comp. Laws § 500.3135(2)(b). The Court will therefore grant Defendants’ summary judgment motion and dismiss the case.⁴

WHEREFORE, it is hereby ORDERED that Defendants’ motion for summary judgment [14] is GRANTED.

This is a final order that closes the case.

SO ORDERED.

/s/ Stephen J. Murphy, III

STEPHEN J. MURPHY, III

United States District Judge

Dated: December 7, 2022

JUDGMENT

IT IS ORDERED AND ADJUDGED that, pursuant to the Court’s order dated December 7, 2022, Plaintiffs’ claims are dismissed with prejudice.

Dated: December 7, 2022

APPROVED:

/s/ Stephen J. Murphy, III

STEPHEN J. MURPHY, III

U.S. DISTRICT JUDGE

End of Document

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¹ Based on the parties’ briefing, the Court will resolve the motion on the briefs without a hearing. See Fed R. Civ. P. 78(b); E.D. Mich. L.R. 7.1(f)(2).

² ‘Bobtail’ refers to a semi-truck with no trailer attached.

³ In Fields, the plaintiff’s vehicle crashed into the defendant’s semi-truck after the defendant pulled into the plaintiff’s lane of travel. Fields, 2020 WL 1703876, at *1. While the court ultimately denied summary judgment, it did so because “a jury could reasonably credit [the plaintiff’s] testimony that there was a sudden emergency[] caused by [the defendant] that left her no time to avoid the crash.” Id. at *3. Zajdel made no sudden emergency claim here, see ECF 1, PgID 1-8; ECF 15, PgID 156-64. Fields is thus distinguishable as to the ultimate finding of fault.

⁴ Because the Court has found that Zajdel was more than 50% at fault, the Court need not address whether Zajdel forfeited her right of way by speeding.