Dempsey v. Shell Oil Co.

589 So. 2d 373, 1991 WL 231855
CourtDistrict Court of Appeal of Florida
DecidedNovember 13, 1991
Docket90-1858
StatusPublished
Cited by23 cases

This text of 589 So. 2d 373 (Dempsey v. Shell Oil Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dempsey v. Shell Oil Co., 589 So. 2d 373, 1991 WL 231855 (Fla. Ct. App. 1991).

Opinion

589 So.2d 373 (1991)

Carlyle Francis DEMPSEY, Appellant,
v.
SHELL OIL COMPANY, a Delaware Corporation, and William J. Irwin, Appellees.

No. 90-1858.

District Court of Appeal of Florida, Fourth District.

November 13, 1991.
Rehearing Denied December 18, 1991.

*374 Scott Mager, Cooney, Ward, Lesher & Damon, West Palm Beach, and Joseph Glick and Charles Prince, Fort Lauderdale, for appellant.

Joe N. Unger, Law Offices of Joe N. Unger, P.A., Miami, and Joel Kaplan, Kaplan & Freedman, Miami, for appellees.

ANSTEAD, Judge.

This is an appeal by the plaintiff, Carlyle Francis Dempsey ("Dempsey"), from an adverse final judgment in a personal injury action brought after he was struck by a vehicle owned by defendant Shell Oil Company, and driven by co-defendant, William Irwin ("Irwin"), a Shell Oil employee. Because of errors we believe took place in the receipt or exclusion of evidence we reverse.

FACTS

On December 23, 1985 at approximately six a.m., Dempsey was struck by a Shell Oil vehicle under nighttime conditions on unlit State Road 84, just east of its intersection with Pine Island Road, in the town of Davie. A lighted 7-Eleven sign and the traffic signals at the intersection were the only sources of illumination, other than the headlights of the Shell Oil vehicle. Dempsey was walking to work at Sears, following the same route he had taken daily for the previous 3 1/2 years, and was attempting to cross the three eastbound lanes of State Road 84 from south to north. Irwin was travelling from west to east with his low beam headlights and testified by deposition *375 that he first saw Dempsey approximately 100 feet prior to the impact. There were no eyewitnesses to the accident other than Irwin and Dempsey. Each claimed to have had the green light. Dempsey suffered multiple fractures, for which he was hospitalized many times and is permanently disabled.

At trial, Dempsey's expert witness, David Wiggins, a mechanical engineer and accident reconstruction expert, proffered the results of an experiment conducted in 1982 in which he measured headlight sight distances of a stationary vehicle. The trial court refused to admit the results of the experiment.

Subsequently, Shell Oil called Dr. Joseph Wattleworth, an expert in accident reconstruction, who testified that in his opinion Irwin was able to see Dempsey about 150 feet away from the point of impact. Based upon that determination and other information, he concluded that Irwin could not have avoided the collision. On cross-examination, Dempsey was not permitted to question Wattleworth as to the distance objects could be seen with low beam headlights, or as to what role such visibility may have played in the accident. Dempsey was permitted to ask Wattleworth whether he had considered headlight sight distance as part of his reconstruction and opinion. When Wattleworth replied in the negative, the trial court refused to allow further inquiry on the matter. Wattleworth had testified in a pretrial deposition that under nighttime conditions, at a speed of 40 mph, 200-250 feet was a safe distance within which to reveal objects, including pedestrians.

Shell read into evidence a portion of Dempsey's deposition, wherein he denied being involuntarily terminated from a prior job that he had years before the subject incident. Thereafter, Shell was allowed to call a former employer of Dempsey to testify that Dempsey had, in fact, been involuntarily terminated from that position due to carelessness.

IMPEACHMENT ON COLLATERAL ISSUE

Dempsey contends the trial court erred in allowing him to be questioned and impeached about the manner and reasons for his separation from the prior job, which he contends is a collateral issue, since he made no claim for lost wages or loss of earning capacity. At trial the following exchange took place:

Mr. Kaplan [Counsel for appellees]: Did you want to take something up?
Mr. Glick [Counsel for appellant]: Yes.
Your Honor, we just have a motion to make before we start this morning. It's been brought to our attention, Mr. Kaplan and I have been talking, that one of the witnesses that he plans to call this morning is a lady by the name of Marchita Ott, O-T-T, who I believe is in the personnel department at Bennett Community Hospital where Mr. Dempsey was employed some time ago back in I believe it was around 19 — Late 1970s, 1980. And the reason that Mr. Kaplan has advised me for bringing this witness is for impeachment purposes. I believe what she's going to testify to is that Mr. Dempsey's employment at the hospital resulted in him being terminated or fired from that position. Now there is no claim being made in this case for lost wages —
The Court: Any particular reason, or just the fact that he was terminated?
Mr. Glick: Well, I believe in Mr. Dempsey's deposition a question was asked of him, something to do with whether his employments had all been voluntary departures or not or a question to that effect.
But there is no claim, Your Honor, being made in this case for lost wages or lost earning capacity. When the complaint was filed in this case, there was no claim made in the capacity. So this is purely collateral. And my understanding of the Rules of Evidence are that if Mr. Kaplan wanted to impeach the Plaintiff, the witness, with this, you know, he can ask him the question on cross examination. But he's precluded from bringing in collateral evidence of that, inasmuch as it's a collateral matter. *376 It has no independent relevancy to this particular lawsuit.
The Court: All right. Response?
Mr. Kaplan: First of all, it goes to the instruction on the believability of a witness, whether he's telling the truth. I am going to bring this in for impeachment purposes.
The Court: Just stop there a minute. Impeachment purposes of what? I haven't heard anything.
Mr. Kaplan: Here we go.
The Court: Go ahead.
Mr. Kaplan: I haven't started my case yet. I'm going to read before she gets on the stand from his deposition of the party, from his deposition, the following questions. And I'll bring it right down to the bottom.
The Court: Sure.
Mr. Kaplan: `Question: Were both of your departures voluntary? Yes, they were both voluntary. I was never fired, period.
`Marchita, would you please take the stand? Would you tell the Jury what the conditions of this man's termination was at Bennett? He was fired.'
The Court: All right. I'll overrule the objection. That's legitimate — if he handles it that way. I just haven't heard any testimony about anything up to this point as far as work.
Mr. Kaplan: Well, it's —
The Court: Who is it you're going to call now?
Mr. Kaplan: I have Officer Gregg in the back. Just so we don't get interrupted, it was the same line on K-Mart. And I've got his separation, firing and termination report in here and they've stipulated to authenticity. So I'll run this into evidence also at the same time.
Mr. Glick: Judge, if I could, the deposition that Mr. Kaplan read, that was taken before, you know, the complaint in this particular case was filed. In other words, the deposition — You know the history of the case. I don't have to repeat that.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mardis v. State
122 So. 3d 950 (District Court of Appeal of Florida, 2013)
Gosciminski v. State
132 So. 3d 678 (Supreme Court of Florida, 2013)
Smith v. State
98 So. 3d 632 (District Court of Appeal of Florida, 2012)
Pedro v. Baber
83 So. 3d 912 (District Court of Appeal of Florida, 2012)
Wilson v. State
72 So. 3d 331 (District Court of Appeal of Florida, 2011)
Special v. Baux
52 So. 3d 682 (District Court of Appeal of Florida, 2010)
Tyrrell v. State
975 So. 2d 615 (District Court of Appeal of Florida, 2008)
Doctors Co. v. State, Dept. of Ins.
940 So. 2d 466 (District Court of Appeal of Florida, 2006)
GREAT HARBOUR CAY REALTY AND INV. CO. LID. v. Carnes
862 So. 2d 63 (District Court of Appeal of Florida, 2003)
General Motors Corp. v. McGee
837 So. 2d 1010 (District Court of Appeal of Florida, 2003)
Stewart & Stevenson v. Westchester Ins.
804 So. 2d 584 (District Court of Appeal of Florida, 2002)
Strasser v. Yalamanchi
783 So. 2d 1087 (District Court of Appeal of Florida, 2001)
Mitchell v. Bonnell
770 So. 2d 1292 (District Court of Appeal of Florida, 2000)
Markowski v. Attel Bank International, Ltd.
758 So. 2d 1283 (District Court of Appeal of Florida, 2000)
Stephenson v. Cobb
763 So. 2d 1195 (District Court of Appeal of Florida, 2000)
C.M. v. State
698 So. 2d 1306 (District Court of Appeal of Florida, 1997)
Little Bridge Marina, Inc. v. Jones Boat Yard, Inc.
673 So. 2d 77 (District Court of Appeal of Florida, 1996)
Correia v. State
654 So. 2d 952 (District Court of Appeal of Florida, 1995)
Doremus v. Florida Energy Systems
634 So. 2d 1106 (District Court of Appeal of Florida, 1994)
O'NEIL v. Gilbert
625 So. 2d 982 (District Court of Appeal of Florida, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
589 So. 2d 373, 1991 WL 231855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempsey-v-shell-oil-co-fladistctapp-1991.