40 Fla. L. Weekly D2661aTop of Form
Wrongful
death — Pedestrian struck by truck driven by defendant’s employee as
pedestrian attempted to cross multilane interstate on foot in early morning
hours — No error in granting summary judgment in favor of defendants where the
only evidence adduced prior to summary judgment hearing supported defendants’
arguments that decedent was sole proximate cause of accident and that there was
no admissible record evidence that would support finding that driver was
negligent in his efforts to avoid collision — Speculative issues raised by
plaintiffs based on inadmissible lay opinion testimony were insufficient to
create material issue of fact precluding summary judgment
death — Pedestrian struck by truck driven by defendant’s employee as
pedestrian attempted to cross multilane interstate on foot in early morning
hours — No error in granting summary judgment in favor of defendants where the
only evidence adduced prior to summary judgment hearing supported defendants’
arguments that decedent was sole proximate cause of accident and that there was
no admissible record evidence that would support finding that driver was
negligent in his efforts to avoid collision — Speculative issues raised by
plaintiffs based on inadmissible lay opinion testimony were insufficient to
create material issue of fact precluding summary judgment
JOSEPH PANZERA and CAROLYN PANZERA, as the personal
representatives of the Estate of Anthony Panzera, on behalf of the Estate and
on behalf of themselves as surviving parents, Appellants, v. DARRYL O’NEAL and
PUBLIX SUPER MARKETS, INC., Appellees. 2nd District. Case No. 2D14-4302.
Opinion filed December 2, 2015. Appeal from the Circuit Court for Charlotte
County; Joseph G. Foster, Judge. Counsel: Brett C. Powell of The Powell Law
Firm, P.A., Palmetto Bay, for Appellants. Katherine E. Giddings of Akerman,
LLP, Tallahassee and Carrie Ann Wozniak Akerman, LLP, Orlando, for Appellees.
representatives of the Estate of Anthony Panzera, on behalf of the Estate and
on behalf of themselves as surviving parents, Appellants, v. DARRYL O’NEAL and
PUBLIX SUPER MARKETS, INC., Appellees. 2nd District. Case No. 2D14-4302.
Opinion filed December 2, 2015. Appeal from the Circuit Court for Charlotte
County; Joseph G. Foster, Judge. Counsel: Brett C. Powell of The Powell Law
Firm, P.A., Palmetto Bay, for Appellants. Katherine E. Giddings of Akerman,
LLP, Tallahassee and Carrie Ann Wozniak Akerman, LLP, Orlando, for Appellees.
(SLEET, Judge.) The estate of Anthony Panzera1 appeals the final order granting
summary judgment in favor of Darryl O’Neal and Publix Supermarkets, Inc.
Because we agree with the trial court’s conclusion that there were no remaining
issues of material fact, we affirm.
summary judgment in favor of Darryl O’Neal and Publix Supermarkets, Inc.
Because we agree with the trial court’s conclusion that there were no remaining
issues of material fact, we affirm.
In the early morning hours of May 29, 2011, O’Neal, a truck
driver employed by Publix, fatally struck Panzera as he attempted to cross a
multilane interstate on foot. The undisputed facts adduced prior to the summary
judgment hearing showed that around 3 a.m., Panzera walked to I-75, climbed a
fence, and entered the interstate where he was struck by the Publix semi
tractor-trailer driven by O’Neal. Panzera was wearing a dark shirt, and there
were no street lights on the interstate in the area of the accident. The semi’s
engine was equipped with a governor that limited the speed of the truck to
sixty-five miles per hour, which was five miles per hour under I-75’s posted
speed limit. The semi also utilized a system designed to generate a sudden
deceleration report when the semi experienced a drop in speed of seven miles
per hour or more in less than one second. On the night of the collision, the
system produced a report, which indicated that O’Neal was traveling at
approximately sixty-five miles per hour when he suddenly began to decelerate.
driver employed by Publix, fatally struck Panzera as he attempted to cross a
multilane interstate on foot. The undisputed facts adduced prior to the summary
judgment hearing showed that around 3 a.m., Panzera walked to I-75, climbed a
fence, and entered the interstate where he was struck by the Publix semi
tractor-trailer driven by O’Neal. Panzera was wearing a dark shirt, and there
were no street lights on the interstate in the area of the accident. The semi’s
engine was equipped with a governor that limited the speed of the truck to
sixty-five miles per hour, which was five miles per hour under I-75’s posted
speed limit. The semi also utilized a system designed to generate a sudden
deceleration report when the semi experienced a drop in speed of seven miles
per hour or more in less than one second. On the night of the collision, the
system produced a report, which indicated that O’Neal was traveling at
approximately sixty-five miles per hour when he suddenly began to decelerate.
O’Neal testified that he first saw Panzera when he ran
across the emergency lane into his lane of travel. He applied his brakes
strongly and steered to the left to avoid Panzera but was unable to avoid the
collision. Officer Jennifer Head and Sergeant Herbert Head of the Florida
Highway Patrol responded to the scene of the accident. Both observed long skid
marks on the road consistent with O’Neal’s testimony that he applied the brakes
and swerved to avoid hitting Panzera. Corporal James Wilmeth of the Florida
Highway Patrol prepared the Traffic Homicide Investigation Report. Corporal
Wilmeth observed skid marks beginning almost one hundred feet before the
collision and concluded that the evidence available at the scene indicated that
O’Neal took immediate evasive action, that O’Neal could have done nothing more
to avoid the collision, and that Panzera caused the collision.
across the emergency lane into his lane of travel. He applied his brakes
strongly and steered to the left to avoid Panzera but was unable to avoid the
collision. Officer Jennifer Head and Sergeant Herbert Head of the Florida
Highway Patrol responded to the scene of the accident. Both observed long skid
marks on the road consistent with O’Neal’s testimony that he applied the brakes
and swerved to avoid hitting Panzera. Corporal James Wilmeth of the Florida
Highway Patrol prepared the Traffic Homicide Investigation Report. Corporal
Wilmeth observed skid marks beginning almost one hundred feet before the
collision and concluded that the evidence available at the scene indicated that
O’Neal took immediate evasive action, that O’Neal could have done nothing more
to avoid the collision, and that Panzera caused the collision.
At the hearing on O’Neal and Publix’s motion for summary
judgment, the estate presented no admissible evidence or expert testimony to
refute the Florida Highway Patrol officers’ conclusion that Panzera caused the
accident or in support of their negligence claim against the defendants. O’Neal
and Publix argued that the undisputed facts showed that Panzera’s own
negligence was the only cause of the collision and that there was no evidence
that O’Neal contributed to Panzera’s death. The trial court agreed and granted
final summary judgment in favor of O’Neal and Publix. This appeal followed.
judgment, the estate presented no admissible evidence or expert testimony to
refute the Florida Highway Patrol officers’ conclusion that Panzera caused the
accident or in support of their negligence claim against the defendants. O’Neal
and Publix argued that the undisputed facts showed that Panzera’s own
negligence was the only cause of the collision and that there was no evidence
that O’Neal contributed to Panzera’s death. The trial court agreed and granted
final summary judgment in favor of O’Neal and Publix. This appeal followed.
We review an order granting summary judgment de novo. Volusia
Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In
a negligence action, summary judgment is improper “[u]nless a defendant can
establish unequivocally the absence of negligence[ ] or that the plaintiff’s
negligence was the sole proximate cause of the injury.” Tallent v. Pilot
Travel Ctrs., LLC, 137 So. 3d 616, 617 (Fla. 2d DCA 2014) (first alteration
in original) (quoting Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d
DCA 1995)). “The party moving for summary judgment has the burden of
establishing irrefutably that the nonmoving party cannot prevail.” Hervey,
650 So. 2d at 645-46. Once the moving party has met this heavy burden, the
nonmoving party must offer admissible evidence that shows the existence of a
genuine issue of material fact. Rooker v. Ford Motor Co., 100 So. 3d
1229, 1231 (Fla. 2d DCA 2012); Arce v. Wackenhut Corp., 40 So. 3d 813,
815 (Fla. 3d DCA 2010). Many litigants labor under the misconception that they
need only argue or proffer any fact that they believe to be in conflict to
survive a motion for summary judgment. However, to prevail it must be
admissible evidence that creates a colorable issue of material fact. See
Byrd v. Leach, 226 So. 2d 866, 868 (Fla. 4th DCA 1969) (holding that the
nonmoving party “may not merely assert that an issue does exist, but . . . must
go forward with evidence sufficient to generate an issue on a material fact”
(citing Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782-3 (Fla.
1965))).
Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In
a negligence action, summary judgment is improper “[u]nless a defendant can
establish unequivocally the absence of negligence[ ] or that the plaintiff’s
negligence was the sole proximate cause of the injury.” Tallent v. Pilot
Travel Ctrs., LLC, 137 So. 3d 616, 617 (Fla. 2d DCA 2014) (first alteration
in original) (quoting Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d
DCA 1995)). “The party moving for summary judgment has the burden of
establishing irrefutably that the nonmoving party cannot prevail.” Hervey,
650 So. 2d at 645-46. Once the moving party has met this heavy burden, the
nonmoving party must offer admissible evidence that shows the existence of a
genuine issue of material fact. Rooker v. Ford Motor Co., 100 So. 3d
1229, 1231 (Fla. 2d DCA 2012); Arce v. Wackenhut Corp., 40 So. 3d 813,
815 (Fla. 3d DCA 2010). Many litigants labor under the misconception that they
need only argue or proffer any fact that they believe to be in conflict to
survive a motion for summary judgment. However, to prevail it must be
admissible evidence that creates a colorable issue of material fact. See
Byrd v. Leach, 226 So. 2d 866, 868 (Fla. 4th DCA 1969) (holding that the
nonmoving party “may not merely assert that an issue does exist, but . . . must
go forward with evidence sufficient to generate an issue on a material fact”
(citing Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782-3 (Fla.
1965))).
Here, in response to O’Neal and Publix’s motion for summary
judgment the estate raised only speculative, rather than genuine, issues of
material fact. See Byrd, 226 So. 2d at 868 (“The term ‘genuine
issue’ means a real, as opposed to a false or colorable, issue.”). The estate
relied solely on the deposition testimony of Panzera’s parents, wherein they
surmised that O’Neal could have avoided the accident had he taken additional
evasive maneuvers and that therefore he must not have been able to see Panzera
before the collision occurred. Their conclusions were based only on their
personal review of the scene after the accident. The Panzeras admitted that
they do not have experience in accident reconstruction and were not present at
the time of the accident. Therefore, their bare allegations of negligence are
purely speculative lay opinion testimony, which was not admissible evidence and
cannot be relied on to create a material issue of fact. See Tarin v.
City Nat’l Bank of Miami, 557 So. 2d 632, 633 (Fla. 3d DCA 1990) (holding
that an officer, as a lay witness with no experience in accident
reconstruction, was not qualified to give an opinion in the “expert field of
traffic investigation and reconstruction”).
judgment the estate raised only speculative, rather than genuine, issues of
material fact. See Byrd, 226 So. 2d at 868 (“The term ‘genuine
issue’ means a real, as opposed to a false or colorable, issue.”). The estate
relied solely on the deposition testimony of Panzera’s parents, wherein they
surmised that O’Neal could have avoided the accident had he taken additional
evasive maneuvers and that therefore he must not have been able to see Panzera
before the collision occurred. Their conclusions were based only on their
personal review of the scene after the accident. The Panzeras admitted that
they do not have experience in accident reconstruction and were not present at
the time of the accident. Therefore, their bare allegations of negligence are
purely speculative lay opinion testimony, which was not admissible evidence and
cannot be relied on to create a material issue of fact. See Tarin v.
City Nat’l Bank of Miami, 557 So. 2d 632, 633 (Fla. 3d DCA 1990) (holding
that an officer, as a lay witness with no experience in accident
reconstruction, was not qualified to give an opinion in the “expert field of
traffic investigation and reconstruction”).
The only evidence adduced prior to the summary judgment
hearing showed that O’Neal was traveling below the speed limit in the right
lane, that he applied the brakes as he saw Panzera running into the road, and
that he steered to the left to avoid Panzera, who entered the highway from the
right shoulder. This evidence supports the appellees’ arguments that Panzera
was the sole proximate cause of the accident and that there is no admissible
record evidence that would support a finding that O’Neal was negligent in his
efforts to avoid the collision.
hearing showed that O’Neal was traveling below the speed limit in the right
lane, that he applied the brakes as he saw Panzera running into the road, and
that he steered to the left to avoid Panzera, who entered the highway from the
right shoulder. This evidence supports the appellees’ arguments that Panzera
was the sole proximate cause of the accident and that there is no admissible
record evidence that would support a finding that O’Neal was negligent in his
efforts to avoid the collision.
Because the estate’s issues are purely speculative and based
on inadmissible lay opinion testimony, no material issue of fact remains, and
we affirm the order granting summary judgment.
on inadmissible lay opinion testimony, no material issue of fact remains, and
we affirm the order granting summary judgment.
Affirmed. (ALTENBERND and LUCAS, JJ., Concur.)
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1Anthony Panzera’s parents, Joseph
and Carolyn Panzera, appear on behalf of the estate and themselves as surviving
parents in this appeal.
and Carolyn Panzera, appear on behalf of the estate and themselves as surviving
parents in this appeal.
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