Abbott v. Dorleans, 41 So. 3d 984 (Fla. Dist. Ct. App. 2010)
This auto accident case involved a tow truck that was partially blocking the left lane while responding to an accident.
The accident occurred on US 27 on a dark evening while Esther Dorleans and her daughter were driving south. Esther’s vehicle collided with a tow truck driven by Kenneth Abbott and owned by Westway Towing. The tow truck was partially blocking the left travel lane of traffic while responding to the scene of an accident and was removing a vehicle. A police car was parked entirely in the median with its lights flashing, Esther did not avoid the accident and struck the rear of the tow truck.
At trial, Abbott and Westway claimed that Esther was negligent in failing to avoid the truck. On liability conflicting evidence was presented as to whether caution cones or flares were set up. Esther’s daughter, Rachelle testified that there were none while Abbott claimed that he set them up. The deputy testified that there were no cones. There was conflicting evidence as to whether Esther slowed down before hitting the truck. Rachelle testified that she told Esther to slow down, but she didn’t have time to avoid the truck. There was other testimony that indicated that Esther did not slow down before the accident. The Jury rendered a verdict for Esther awarding her $1,442,636 finding that Esther was 10% at fault, the tow truck driver 35% at fault and deputy 55% at fault.
On appeal Abbot and Westway brought up for the first time that they did not owe a legal duty for Esther. The court rejected their argument because they cannot raise the absence of legal duty for the first time on appeal and stated that the question whether the defendant has exercised reasonable care on the roadways is generally a question for the jury to decide. Here the jury found that the two truck driver had not exercised reasonable care in managing the accident scene on a roadway by allocating Abbott and Westway a large part of fault.
Abbot and Westway also asserted that the damages that Esther was granted was excessive and contrary to the great weight of evidence. The court rejected this argument as well stating that there was ample evidence to support the jury’s verdict and that although it disagreed with the amount mere disagreement with the verdict is not enough to reverse the jury’s findings. A reversal of jury verdicts is only necessary when the verdict is contrary to the manifest weight of evidence where the evidence is clear obvious and undisputable. The court concluded that although the amount that Esther was awarded was substantially less than the amount she requested and that the amount awarded on one small award greater than the amount that was testified at trial the discrepancy was not grounds for reversal but attributed to the jury round up the amount of awards.
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