Date: 01-07-2009

Case Style: Glenica Petit-Dos v. School Board of Broward County

Case Number: 4D07-2534

Judge: Polen

Court: Florida Court of Appeal, Fourth Appellate District on appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County

Plaintiff's Attorney: Philip Burlington, Andrew Harris and Bard Rockenbach of
Burlington & Rockenbach, P.A., West Palm Beach, and David C. Appleby
a n d Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort
Lauderdale, for appellant.

Defendant's Attorney: G. Jeffrey Vernis, Karen M. Nissen, Nicolette N. John and Thomas W.
Paradise of Vernis & Bowling of Palm Beach a n d Broward, P.A.,
Hollywood, for appellee.

Description: This is a negligence action against the School Board of Broward
County (School Board), arising from serious injuries that Glenice Petit-
Dos (Petit-Dos) sustained when, upon exiting the school bus, a pick-up
truck struck her as she sought to cross the street. At the time of the
collision, Petit-Dos was an eighteen year old, deaf student. Petit-Dos is
appealing the final judgment finding the School Board twenty percent
negligent. We affirm, concluding that the trial court properly listed
School Board on the verdict form, and that the erroneous evidentiary
ruling at trial was a harmless error.

The first issue is whether the pick-up truck driver should have been
excluded from the verdict form because he committed an intentional tort.
At around 3 p.m., Jackson, the bus driver, stopped on the two lane
residential street, across from Petit-Dos’s house. The residential street
had a speed limit of 25 miles per hour. Jackson had activated the bus’s
flashing lights and extended the stop sign on its left side. Petit-Dos
exited and walked across the front of the bus to cross the street to her
house. Jackson then heard a pick-up truck speeding up the street and
began banging on the window and honking her horn to alert Petit-Dos.
Moments later, the truck struck Petit-Dos, knocking her to the ground.
An expert testified that the pick-up truck was traveling between 42 to 60
miles per hour.

Antwan Snell was the driver of the pick-up truck. Snell was fleeing
police, after an officer approached his parked truck to investigate a drug
sale. In his deposition, which was read into record at trial, Snell stated
that he never intended to hurt anyone and that he did not realize he
struck anyone. Pleading no contest, Snell received a five year prison
sentence for, inter alia, reckless driving.

Petit-Dos sued the School Board under the following theories of
liability: (1) Jackson negligently operated the school bus, (2) School
Board negligently trained Jackson, and (3) School Board negligently
supervised Jackson. Apportioning comparative negligence, the jury
found School Board 20 %, Snell 70 %, and Petit-Dos 10 % at fault.
We review de novo the legal question of whether certain conduct
qualifies as negligence or intentional tort. See, e.g., Boza v. Carter, 2008
WL 4601222, at *1 (Fla. 1st DCA Oct. 17, 2008). The comparative fault
statute, section 768.81, Florida Statutes, provides for apportionment of
fault in negligence cases. However, the statute contains an exception “to
any action based upon an intentional tort.” § 768.81(4)(b), Fla. Stat.
Our supreme court “has defined an intentional tort as one in which the
actor exhibits a deliberate intent to injure or engages in conduct which is
substantially certain to result in injury or death.” D’Amaro v. Ford Motor
Co., 806 So. 2d 424, 438 (Fla. 2002).

Citing Spivey v. Battaglia, 258 So. 2d 815, 817 (Fla. 1972), the
D’Amaro court distinguished negligence from a n intentional tort as
follows:

Where a reasonable man would believe that a particular
result was substantially certain to follow, he will be held in
the eyes of the law as though he had intended it . . . .

However, the knowledge and appreciation of a risk, short of
substantial certainty, is not the equivalent of intent. Thus,
the distinction between intent and negligence boils down to a
matter of degree. Apparently the line has been drawn by the
courts at the point where the known danger ceases to be
only a foreseeable risk which a reasonable man would avoid
(negligence), and become a substantial certainty.

Id. (concluding that driving while intoxicated is not an intentional tort)
(quoting Spivey) (omission in original). This substantial-certainty
standard is a n objective inquiry, decided as a matter of law. See
Travelers Indemnity Co. v. PCR Inc., 889 So. 2d 779, 788 (Fla. 2004);
Boza, 2008 WL 4601222, at *1.

In Merrill Crossings Associates v. McDonald., 705 So. 2d 560, 560 (Fla.
1997), the plaintiff was shot by an unknown assailant in the Wal-Mart
parking lot. Plaintiff sued Wal-Mart and the owner of the shopping
center, “alleging failure to maintain reasonable security measures.” Id.
at 560. The trial court excluded the unknown assailant from the verdict
form, and Wal-Mart appealed. Id. Approving the trial court, the supreme
court reasoned that Wal-Mart is a “negligent tortfeasor whose acts or
omissions give rise to or permit an intentional tortfeasor’s actions.” Id. at
562.

The intentional tort exception to the comparative fault statutes
promotes “a public policy that negligent tortfeasors . . . should not be
permitted to reduce their liability by shifting it to another tortfeasor
whose intentional criminal conduct was a foreseeable result of their
negligence.” Id. at 562-63 (“Thus, it would be irrational to allow a party
who negligently fails to provide reasonable security measures to reduce
its liability because there is an intervening intentional tort, where the
intervening intentional tort is exactly what the security measures are
supposed to protect against.”) There, the shooting by the unknown
assailant met the first definition of an intentional tortfeasor – conduct
exhibiting a deliberate intent to injure. Thus, section 768.81 did not
apply and the intentional tortfeasor was properly excluded from the
verdict form. Id. at 563.

Here, the issue is whether Snell’s conduct meets the second definition
of an intentional tort: was his conduct substantially certain to result in
injury to Petit-Dos. On these facts, we are unable to conclude that
Snell’s conduct crossed the line from being negligent, or even grossly
negligent, to one of an intentional tort. For example, there is no secondhand
evidence showing that despite seeing children crossing the street,
Snell sped by the school bus. Although this is a close case, the instant
facts fall short of showing that injury to Petit-Dos was substantially
certain to follow, so that even if Snell did not aim to harm her, we would
consider his conduct as though he had intended to harm Petit-Dos.
Rather, we hold that the known danger of injuring Petit-Dos was “only a
foreseeable risk which a reasonable man would avoid.” D’Amaro, 806 So.
2d at 438.

The second issue on appeal concerns the trial court excluding certain
testimony by Jackson and excluding Jackson’s deposition from evidence.
Four times, Petit-Dos unsuccessfully attempted to obtain a favorable
ruling on admissibility of this evidence. Examining Jackson about her
actions on the day of the collision, Petit-Dos asked:
Do y o u ta k e some responsibility for this accident, the
accident, the harm to Petit-Dos?

School Board: Judge, I would object. It’s for the jury to
decide.

***

The Court: On what grounds?

School Board: That it is a question for the jury to decide.

***

The Court: Objection sustained. Move on.

On cross-examination, School Board established that Jackson had not
been reprimanded by School Board for the incident because she did not
do anything wrong.

After Jackson was discharged as a witness, Petit-Dos proferred the
following deposition testimony: “Well, do you take some responsibility for
this action, for this accident? Answer, do I? Question, yes. Answer, in
my heart, yes, I feel like I hurt her a lot. Okay. And why is that?
Answer, from this incident.” Petit-Dos claimed that this deposition
testimony was a vicarious admission of Jackson’s employer, School
Board, and that “the question was regarding a matter within the course
and scope of her employment,” citing the Florida Evidence Code. School
Board argued that Florida Rule of Civil Procedure 1.330(a)(2) allows the
use of a deposition only of an officer of a corporation, and Petit-Dos was
not School Board’s corporate representative. Without providing a basis
for its ruling, the trial court summarily sustained School Board’s
objection to admission of Jackson’s deposition into evidence.

“While the standard of review for admissibility of evidence is abuse of
discretion, a trial court’s discretion is limited by the rules and statutes
governing the admission.” Castaneda v. Redlands Christian Migrant
Ass’n, 884 So. 2d 1087, 1090 (Fla. 4th DCA 2004). First, Petit-Dos
contends that the trial court erred in sustaining School Board’s objection
to her direct examination of Jackson on whether she takes responsibility
for the accident.

“Generally, a lay witness may not testify in terms of an inference or
opinion, because it usurps the function of the jury.” Fino v. Nodine, 646
So. 2d 746, 748 (Fla. 4th DCA 1994). However, section 90.701, Florida
Statutes, provides that a lay witness may testify in the form of inference
and opinion when:

(1) The witness cannot readily, and with equal accuracy and
adequacy, communicate what he or she has perceived to the
trier of fact without testifying in terms of inferences or
opinions and the witness's use of inferences or opinions will
not mislead the trier of fact to the prejudice of the objecting
party; and

(2) The opinions and inferences do not require a special
knowledge, skill, experience, or training.
§ 90.701, Fla. Stat.

In the instant case, contrary to the Evidence Rules, the trial court
sustained School Board’s objection that the question of whether Jackson
takes responsibility for the accident was “for the jury to decide.” Cf.
Castaneda, 884 So. 2d at 1093 (“Failure to follow the Rules [of Civil
Procedure] constitutes an error of law, not an abuse of discretion.”).
According to section 90.701, Florida Statutes, Jackson should have been
allowed to offer her opinion on whether she takes responsibility for the
accident because she likely could not otherwise readily and accurately
testify to what she perceived, and her opinion did not require special
knowledge or experience.

School Board claims that Jackson’s answer that she feels like she
hurt Petit-Dos a lot would have told the jury how to decide the case and
would not have helped them determine what had occurred. On the
contrary, the question did not seek Jackson’s opinion on whether School
Board negligently trained or supervised Jackson, or whether Jackson
negligently operated the bus – all of which would b e conclusions
dictating to the jury how to decide the case. Instead, Jackson’s answer
would have revealed her sense of moral responsibility for what happened
to Petit-Dos, and did not relate to the central legal issue in the case.
Second, Petit-Dos argues that the trial court erred in excluding from
evidence Jackson’s deposition testimony o n whether she took
responsibility for the accident. Petit-Dos insists that the excerpt from
her deposition was a vicarious admission of a party’s employee, and
thus, should have been admitted into evidence.

Rule 1.330, Florida Rules of Civil Procedure, allows for the use of a
deposition against a party:

so far as admissible under the rules of evidence applied as
though th e witness were then present and testifying in
accordance with any of the following provisions: (1) Any
deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent
as a witness or for any purpose permitted by the Florida

Evidence Code.

R. 1.330(a)(1), Fla. R. Civ. P. (emphasis added). Found in the Florida
Evidence Code, section 90.803, Florida Statutes, provides in relevant
part:

the following are not inadmissible as evidence, even though
the declarant is available as a witness:

***

(18) Admissions.--A statement that is offered against a party

and is:

***

(d) A statement by the party's agent or servant concerning a
matter within the scope of the agency or employment thereof,
made during the existence of the relationship;
§ 90.803(18)(d), Fla. Stat.

In Castaneda, 884 So. 2d at 1089, where a minor’s mother sued a
daycare center for minor’s personal injuries, this court considered the
trial court disallowing “the plaintiff to read excerpts of the depositions of
employees of the daycare center, which were presented as admissions.”
There, “Castaneda’s attorney took depositions of the [daycare] employees
who were present at the daycare center on the date of the accident.” Id.

Although the issue there was whether the offering party had to first lay
the predicate by showing unavailability of the employee witnesses, this
court analyzed the procedure for admitting depositions of opposing
party’s employees on the ground that the depositions were admissions.
Id.

“‘Florida courts have consistently admitted into evidence statements
b y employees concerning matters arising from the course of their
employment under the doctrine of admissions.’” Id. at 1091 (quoting
Hunt v. Seaboard Coast Line R. Co., 327 So. 2d 193, 195-96 (Fla. 1976)).

Accordingly, the Castaneda court concluded that “[u]nder this definition,
the statements of the [daycare] employees are admissions within the
meaning of section 90.803(18)(d) as the statements concerned matters
regarding this specific accident arising from their employment and were
made while the deponents were still employees of [the daycare].” Id.

Here, Jackson was still employed as a bus driver for School Board,
and her statements regarding the collision that injured Petit-Dos meet
the definition of an admission against her employer. Similar to daycare
employees in Castaneda giving statements about the minor’s accident at
the daycare, Jackson’s statements that she felt she hurt Petit-Dos a lot,
do concern matters arising from the course of her employment in that
she brought Petit-Dos to the bus stop where the collision occurred and
was an eyewitness to the collision. School Board’s attempt to limit the
doctrine of admissions to Jackson’s comments on “the mechanics of
Jackson’s driving of the bus, or the rules and regulations governing her
position,” is not well-taken, as it is contrary to the case law.
Nevertheless, we conclude that the errors were harmless because the
jury did apportion some liability to School Board. See generally Pascale
v. Federal Exp. Corp., 656 So. 2d 1351, 1353 (Fla. 4th DCA 1995)
(defining the harmless error test). The direct examination question and
Jackson’s excluded answer did not go to the issue of the amount of
School Board’s negligence and thus, the error was not harmful. Lastly,
we affirm, without further discussing, the final issue on appeal.

* * *

http://www.4dca.org/opinions/Jan%202009/01-07-09/4D07-2534.op.pdf

Outcome: Nevertheless, we conclude that the errors were harmless because the
jury did apportion some liability to School Board. See generally Pascale
v. Federal Exp. Corp., 656 So. 2d 1351, 1353 (Fla. 4th DCA 1995)
(defining the harmless error test). The direct examination question and
Jackson’s excluded answer did not go to the issue of the amount of
School Board’s negligence and thus, the error was not harmful. Lastly,
we affirm, without further discussing, the final issue on appeal.

Plaintiff's Experts:

Defendant's Experts:

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