Zwinge v. Hettinger

530 So. 2d 318, 1988 WL 67257
CourtDistrict Court of Appeal of Florida
DecidedJuly 1, 1988
Docket87-1648
StatusPublished
Cited by17 cases

This text of 530 So. 2d 318 (Zwinge v. Hettinger) 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
Zwinge v. Hettinger, 530 So. 2d 318, 1988 WL 67257 (Fla. Ct. App. 1988).

Opinion

530 So.2d 318 (1988)

Roy ZWINGE, Appellant,
v.
Kevin J. HETTINGER, Carrie Ann Carta, State Farm Mutual Automobile Insurance Company, Andessa L. Davis, Appellees.

No. 87-1648.

District Court of Appeal of Florida, Second District.

July 1, 1988.
Rehearing Denied August 29, 1988.

Philip Burlington, of Edna L. Coruso, P.A., West Palm Beach, and Charles H. McQuillan, P.A., Tampa, for appellant.

Bruce D. Austin, of Kaleel and Kaleel, P.A., St. Petersburg, for appellees.

*319 PARKER, Judge.

Zwinge appeals from the trial court's judgment entered for the appellees, defendants below, following the granting of a directed verdict in their favor. We reverse.

Zwinge suffered injuries as a result of an automobile accident which occurred on interstate highway 275 (I-275) in Pinellas County at approximately 2:00 a.m. on June 26, 1982. Zwinge filed a complaint, which named the appellees as defendants, in an effort to recover for his injuries. The case proceeded to trial during which the following evidence was established.

Zwinge's accident was preceded by another collision involving appellee, Kevin J. Hettinger. Hettinger, driving a Toyota owned by appellee, Carrie Ann Carta, was proceeding northbound on I-275, which was composed of three northbound and three southbound lanes divided by a median. Hettinger was traveling in the left-hand lane when he was observed by a witness, Mary Morton, weaving in the lane. Morton also observed as the Toyota driven by Hettinger twice struck the concrete wall located on the left-hand side of the road, then collided with a Cadillac that had been parked on the left-hand shoulder. The impact from that collision propelled the Cadillac across the three northbound lanes, striking a guardrail located on the opposite side. When the Cadillac finally stopped, part of the vehicle was obstructing the right-hand lane of traffic and none of the Cadillac's lights were on. The Toyota came to a stop on the left-hand shoulder of the highway, in turn, blocking the left-hand lane. As a result, the northbound traffic was restricted to the middle lane, which was the only open lane at the time. At the trial of this case, Morton testified that immediately before the location of the first accident, there was a slight hill and curve on the highway creating a blind spot for oncoming drivers, who could not see the accident scene until they were almost upon it.

After observing the initial collision, Morton stopped on the right-hand shoulder and activated her automobile's emergency flashers. She exited the car and ran across the highway to where the Toyota was stopped. Hettinger had already exited the Toyota. According to Morton, she, her husband, and another man attempted to keep Hettinger calm, but found it difficult due to Hettinger's inebriated condition. There was also evidence in the record that one of the men who had stopped at the accident scene began throwing cans and bottles from inside the Toyota into the median.

Sean Schoen testified that he was driving southbound on I-275 after the first collision when he saw the cars stopped on the northbound side of the road. Noticing that there were no police on the scene he stopped to render assistance. Schoen stated at trial that anyone traveling northbound on I-275 at the maximum allowable speed limit would have struck the two automobiles, the Toyota and Cadillac, which were obstructing the road.

Once Schoen observed that there were no lights on that section of I-275, he attempted to warn the northbound traffic of the hazard by waving a white towel. Some of the vehicles, including the car driven by Zwinge, slowed down in response to Schoen's warning, but the automobile driven by Wayne Shattuck did not. As Zwinge proceeded to slow down, Shattuck's car approached on the right-hand side of the middle lane and struck the back end of Zwinge's car "with a real good whack." Zwinge had been in the process of pulling off the roadway to offer aid, but at the moment of impact with Shattuck's car, Zwinge was still in the right-hand through lane about seventy-five feet north of the abandoned Cadillac and the Toyota driven by Hettinger. The impact from this collision drove Zwinge's car into Jerry Guidice's automobile which was parked on the right-hand shoulder of the highway. Zwinge's car ricocheted off Guidice's car and into the guardrail. Guidice had noticed Schoen flagging the traffic and had stopped on the side of the road to assist. There was testimony placing the second collision between three and ten minutes of the first one.

At trial, Guidice stated that he observed Zwinge's car being driven through the accident *320 scene slowly, then Shattuck's car as it traveled down the highway until it hit Zwinge's car in the rear, pushing Zwinge's vehicle into Guidice's car. Zwinge was found unconscious in his vehicle following the accident. Zwinge testified that he was proceeding northbound on I-275 when he saw vehicles stopped on either side of the road. He noticed the Cadillac which was partially obstructing the right-hand lane. While he did not witness the initial collision, Zwinge assumed there had been an accident because of the manner in which the cars were positioned on the roadway. Zwinge decided to stop to offer aid since no flares had been placed on the roadway to caution oncoming traffic and he had some flares in the trunk of his car. Zwinge testified: "I pulled up around the Cadillac, and as I did, I turned my flashers on and I was pulling off the road, when I looked in my mirror and I seen headlights heading for me, and I got hit by another car."

Shattuck's testimony revealed that he had been drinking on the night of the accident, and further that as a result of the accident he had amnesia and could not remember certain details about the incident. Shattuck stated, however, that he was familiar with I-275 and the area of the highway involved in the collision and that he believed he was driving within the maximum allowable speed limit. Shattuck maintained he did not have any time to brake and did not recall seeing Zwinge's vehicle prior to the accident.

G.E. Triplett, a highway patrolman, testified regarding his investigation of the collision involving Shattuck and Zwinge. When Triplett arrived at the scene, Schoen was flagging people down directing them to the center lane of traffic. Triplett noticed numerous hazards present at the accident scene including the location of the Cadillac and Toyota. There were many vehicles parked on both sides of the roadway by persons who had stopped to help. Triplett also noted the dangerous condition occasioned by the curve and hill that created a blind area for oncoming traffic. Visibility was so poor at the location of the accidents that some northbound vehicles almost hit Triplett's patrol car even though he had activated the car's overhead lights. In order to alert the approaching traffic of the perilous situation, Triplett distributed flares to persons who had stopped to assist to be placed along the roadway.

According to Triplett, Shattuck's vehicle collided with the car driven by Zwinge approximately fifty to one hundred feet north of where the Cadillac was stationed. Zwinge's car was totaled and Zwinge was taken from the scene in an ambulance. Triplett stated that due to the gasoline and debris which was present on the roadway, the highway was eventually closed until the fire department arrived. After Triplett concluded his investigation of the accidents, he found there was no improper driving on the part of Zwinge. However, Triplett cited Shattuck and Hettinger for careless driving and each pled guilty to the charge.

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Cite This Page — Counsel Stack

Bluebook (online)
530 So. 2d 318, 1988 WL 67257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zwinge-v-hettinger-fladistctapp-1988.