Penzera v. O'Neal
198 So. 3d 663
| Fla. Dist. Ct. App. | 2015Background
- Shortly before 3:00 a.m. on May 29, 2011, Anthony Panzera climbed a fence and entered I-75 on foot and was struck and killed by a Publix tractor-trailer driven by Darryl O'Neal.
- The collision occurred on a dark stretch of interstate; Panzera wore a dark shirt and there were no street lights in the area.
- O'Neal's truck had a 65 mph governor (5 mph under the posted limit) and a sudden-deceleration recording system that showed a rapid deceleration from about 65 mph immediately prior to impact.
- Highway Patrol officers observed nearly 100 feet of skid marks and concluded O'Neal applied brakes and steered to avoid Panzera; the officers attributed causal fault to Panzera.
- At summary judgment the estate produced no expert or admissible evidence rebutting the officers' findings; Panzera's parents offered only lay, speculative opinions based on viewing the scene after the fact.
- The trial court granted summary judgment for O'Neal and Publix; the Second District affirmed, finding no genuine issue of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a genuine issue of material fact exists on negligence | Panzera's parents argued O'Neal could have taken additional evasive maneuvers and thus was negligent | O'Neal/Publix argued undisputed evidence shows Panzera's conduct was sole proximate cause and O'Neal acted reasonably | Held for defendants: no admissible evidence creates a genuine factual dispute; summary judgment affirmed |
| Whether lay testimony from Panzera's parents can create a fact issue | Parents asserted their scene observations support negligence inference | Defendants argued parents lacked reconstruction expertise and testimony was speculative lay opinion | Held: parents' opinions were inadmissible speculative lay opinions and insufficient to defeat summary judgment |
| Whether defendants met their burden to show absence of negligence | N/A (plaintiff bears burden to present opposing evidence once defendants meet burden) | Defendants presented physical evidence, electronic deceleration record, and officer reports showing evasive action | Held: defendants met heavy burden; evidence established absence of defendant negligence or that plaintiff was sole proximate cause |
| Whether summary judgment standard was satisfied | Plaintiff contended issues remained for trial | Defendants contended the record is undisputed and summary judgment proper | Held: summary judgment proper under de novo review; no material factual disputes remained |
Key Cases Cited
- Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (standard of review for summary judgment)
- Tallent v. Pilot Travel Ctrs., LLC, 137 So. 3d 616 (movant must establish absence of negligence or plaintiff's sole proximate cause)
- Hervey v. Alfonso, 650 So. 2d 644 (movant's heavy burden on summary judgment)
- Rooker v. Ford Motor Co., 100 So. 3d 1229 (nonmovant must present admissible evidence to create a fact issue)
- Arce v. Wackenhut Corp., 40 So. 3d 813 (summary judgment evidence requirements)
- Byrd v. Leach, 226 So. 2d 866 (genuine issue means real, not colorable)
- Tarin v. City Nat'l Bank of Miami, 557 So. 2d 632 (lay witness not qualified to offer expert reconstruction opinion)
- Harvey Bldg., Inc. v. Haley, 175 So. 2d 780 (nonmoving party must go forward with sufficient evidence to generate an issue on a material fact)