Gulley v. Pierce

625 So. 2d 45, 1993 WL 366882
CourtDistrict Court of Appeal of Florida
DecidedSeptember 17, 1993
Docket92-2170
StatusPublished
Cited by10 cases

This text of 625 So. 2d 45 (Gulley v. Pierce) 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
Gulley v. Pierce, 625 So. 2d 45, 1993 WL 366882 (Fla. Ct. App. 1993).

Opinion

625 So.2d 45 (1993)

Aubry Allen GULLEY, as Personal Representative of the Estate of Annie Jean McMillan Gulley, deceased, Appellant,
v.
Willie Andrew PIERCE, Individually, Keller Industries, Inc., a Florida corp., Penske Truck Leasing, a foreign corp., Berneice Alberta DeRuiter, Individually, and Ray Linkhart, Individually, Appellees.

No. 92-2170.

District Court of Appeal of Florida, First District.

September 17, 1993.
Rehearing Denied November 5, 1993.

*46 Joseph M. Ripley, Jr., Jacksonville, for appellant.

*47 Daniel C. Shaughnessy and John J. Schickel of Coker, Myers, Schickel, Cooper & Sorenson, P.A., Jacksonville, for appellees Pierce, Keller & Penski.

H. Franklin Perritt and Alan K. Ragan of Marks, Gray, Conroy & Gibbs, P.A., Jacksonville, for appellees DeRuiter & Linkhart.

ERVIN, Judge.

In this appeal from a final judgment entered in a wrongful death action, finding appellees Willie Pierce, the operator of a semi-tractor trailer; Keller Industries, Inc., Pierce's employer; and Penske Truck Leasing, the owner of the tractor-trailer, not liable for the death of Annie Jean McMillan Gulley, appellant raises the following issues: (1) whether the trial court erred in refusing to give plaintiffs' requested jury instructions relating to certain violations of the Uniform Traffic Control Law, and (2) whether the trial court erred in allowing an investigative criminal homicide detective to testify as an accident reconstruction expert. We affirm as to the latter issue, but reverse as to the lower court's refusal to give to the jury three of appellants' requested five jury instructions, and remand the case with directions.

In the late afternoon of August 21, 1990, an accident occurred at the intersection of U.S. 1 and Dunn Avenue, located in Jacksonville, Florida, which involved Pierce's tractor-trailer and a Ford Pinto automobile operated by appellee Berneice DeRuiter and occupied by appellee Ray Linkhart, the owner of the automobile. While Pierce was driving the truck northward in the left travel lane on U.S. 1, a four-lane highway divided by a median strip, the Ford Pinto, which had previously come to a stop before entering the intersection, proceeded forward on Dunn Avenue in a westerly direction, went across the two southbound lanes of U.S. 1 and the median into the truck's travel lane, and struck the left front section of the truck. Just before the impact, Pierce attempted to turn the truck to the right, but, following both his corrective action and the collision with the Pinto, he lost control of the truck, which swerved back to the left and crossed the median, both southbound traffic lanes of U.S. 1, then a ditch, and finally barreled into an adjacent trailer park where it struck three trailer homes, the last occupied by Annie Jean Gulley, causing her death. The jury rendered a verdict finding DeRuiter and Linkhart liable, but not Pierce, Keller Industries, or Penske, and assessed damages against DeRuiter and Linkhart in the amount of $70,000.

At trial, the theory of appellant's case against Pierce, Keller, and Penske was that if Pierce had reasonably reduced the speed of his truck before driving into the intersection, he could have avoided the collision with DeRuiter's automobile and the consequential, accidental death of Gulley. Pierce's experts offered evidence indicating the contrary, opining that the speed of the truck — assuming it was between 55-60 miles per hour — was reasonable under the circumstances and stating that if the truck's speed had been, for example, reduced to 40 miles per hour, the probability was that greater damage might have occurred because the DeRuiter automobile would have been struck in the vicinity of the passenger door, thereby potentially causing the deaths of its occupants. This testimony was submitted for the purpose of corroborating that of Pierce, whose defense was essentially that the accident was practically unavoidable; that he could not have reasonably anticipated that the Pinto, driven at a speed which Pierce estimated to be no greater than 15 miles per hour, would proceed into his lane of traffic for which he had the right-of-way. Following the accident, it was established that DeRuiter, the operator of the Pinto, then had a blood alcohol content of .18 percent.

Concerning appellant's first issue, the failure of the trial court to give certain requested jury instructions advising that violations of the Uniform Traffic Control Law are evidence of negligence, we reverse as to the lower court's failure to give instructions relating to (1) Section 316.1235, Florida Statutes (1989), requiring a vehicle to stop when approaching an intersection where traffic lights are inoperative; (2) Section 316.183, Florida Statutes (Supp. 1990), regarding unlawful speed; and (3) Section 316.076, Florida Statutes (1989), pertaining to a motorist's duty to proceed with caution at an intersection *48 at which flashing signals are located. We affirm, however, as to the court's refusal to advise the jury regarding instructions relating to Section 316.271, Florida Statutes (1989), requiring every motor vehicle operated on the highway to have a horn in good working order; and Section 316.261(7)(a), Florida Statutes (1989),[1] directing that a truck towing a trailer equipped with air brakes shall have two means of activating the emergency trailer brakes.

We agree with the trial court that no evidence was presented which could conceivably support the latter two instructions. The evidence convincingly displays that Pierce's truck was equipped with a horn and brakes which were operative, and that there were two means by which the emergency brakes could have been activated. The fact that the operator of the truck neither sounded the horn nor applied the brakes before the collision occurred does not justify the giving of the requested instructions, in that the specific conduct the two statutes prohibit is the operation of a vehicle with defective equipment. Cf. Estate of Wallace v. Fisher, 567 So.2d 505 (Fla. 5th DCA 1990).

Turning to the first requested instruction, pertaining to the effect of a violation of section 316.1235, we note that it was clearly supported by the evidence. Pierce testified that the yellow, blinking caution light located at the intersection where he collided with DeRuiter's automobile was not working. A traffic signal supervisor with the City of Jacksonville corroborated this, stating that on the evening of the accident, which occurred between 5:00 p.m. and 6:00 p.m., the north and southbound signals facing highway U.S. 1 were not functioning, whereas the east and westbound signals at the intersection were flashing red. On the other hand, Detective Massey with the Jacksonville Sheriff's Office stated that when he arrived at the scene shortly following the accident, the yellow, blinking caution lights for the northbound and southbound lanes were "pale."

Obviously, there was some evidence from which the jury could have concluded, if it had been appropriately instructed, that the flashing caution signals facing the northbound and southbound lanes of traffic at the intersection in question were inoperative, and that the driver's failure to stop was, under such circumstances, evidence of negligence. As the Florida Supreme Court observed in Seaboard Coastline Railroad Co. v. Addison, 502 So.2d 1241, 1242 (Fla. 1987), when there is evidence of a violation of a traffic ordinance, a requesting party is entitled to have the jury instructed on his or her theory of the case.

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Bluebook (online)
625 So. 2d 45, 1993 WL 366882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulley-v-pierce-fladistctapp-1993.