Key Points

  • The Second District Court of Appeal held that the trial court abused its discretion by giving the standard res ipsa loquitur instruction in a single-vehicle motorcycle crash with no identified cause.
  • The exclusive-control element failed because the plaintiff's own expert admitted a passenger can exert control over a motorcycle and cause the driver to lose control.
  • The second element failed because the trial evidence established that motorcycles can crash without driver negligence, and the case was neither a wayward-wheel nor a defective-vehicle case.
  • The error was harmful because the instruction let the jury infer negligence unless it affirmatively found none, flipping or greatly reducing the plaintiff's burden of proof.
  • The court reversed and remanded for a new trial, rendering the plaintiff's challenge to the post-additur new-trial order moot, and rejected the driver's challenge to the settlement ruling.

A Florida appeals court on Friday threw out a jury verdict for a woman hurt when the motorcycle she was riding as a passenger ran off the road, holding that the trial judge wrongly told jurors they could infer the driver's negligence from a crash nobody could explain.

A three-judge panel of the Second District Court of Appeal reversed the verdict for Leslie Crocker and sent her negligence case against the driver, Michael Rein, back to Hillsborough County for a new trial. Judge Khouzam wrote the opinion, and Judges Northcutt and LaRose concurred.

The ruling centers on res ipsa loquitur, a doctrine that lets jurors infer negligence without direct proof when the defendant had exclusive control of whatever caused the injury and the accident is the kind that does not ordinarily happen without negligence. The panel held that neither condition was met in this unexplained single-vehicle motorcycle crash, and that the instruction flipped, or at least lightened, the plaintiff's burden of proof.

The parties agreed that Crocker was sitting behind Rein on his motorcycle when he lost control and ran off the road, injuring her. What caused the crash was never established. Khouzam wrote that "there was no evidence of a collision, road debris, intoxication, a mechanical defect, or any other clear precipitant for the loss of control."

Rein testified that the motorcycle began to fishtail immediately after Crocker leaned forward and pointed off the road to show him where her daughter lived. Crocker's own expert conceded that a passenger's movements could cause a driver to lose control, though he opined that hers were not enough. He also admitted that he could not rule out other causes, such as an unnoticed environmental hazard, and that the motorcycle could have behaved as it did without any rider error.

At the charge conference, Crocker's counsel requested the standard res ipsa loquitur instruction, arguing that Rein had exclusive control because he was driving and that a single-vehicle crash with no clearly identified cause would not ordinarily happen without negligence. Rein's counsel disputed both points, relying on the expert's concessions.

The trial judge asked whether the instruction "still allows [the jurors] to not find liability if taking into consideration all the evidence in the case they find that the event was not due to any negligence on the part of the defendant?" When Crocker's counsel said it did, the court gave the instruction. The jury returned a verdict for Crocker.

On appeal, the panel noted that the Florida Supreme Court has repeatedly cautioned that the doctrine is one "of extremely limited applicability" and has said that a court "should never lightly provide this inference of negligence." Khouzam also quoted a 1975 Third District decision stating that "res ipsa is ordinarily unavailable to the plaintiff in automobile accident cases."

The recognized exceptions to that rule are narrow, the court said. They include cases in which a defendant loaned someone a defective vehicle, and so-called "wayward wheel" cases.

"Here, the res ipsa loquitur instruction should not have been given because neither of its elements were met in the context of this case," Khouzam wrote.

On exclusive control, the court pointed to the expert's admission that a passenger can cause the driver to lose control, calling it "particularly relevant" given Rein's testimony that Crocker was moving and gesturing just before the crash. "Thus, the evidence in the case was actually undisputed that Mr. Rein was not in exclusive control over the motorcycle while Ms. Crocker was a passenger," the opinion said.

The second element failed as well. The panel wrote that "the trial evidence affirmatively established that motorcycles can and do crash without negligence on the part of the driver," pointing again to the expert's concessions.

The court stressed that the case did not fall within either exception. "To the contrary, there has been no suggestion of a wayward wheel or anything like it," Khouzam wrote, adding that the parties had stipulated in the trial court that a mechanical defect did not cause the accident.

The panel also found the error harmful. With the instruction, "as the trial court expressly acknowledged," the jury could infer Rein's negligence unless it affirmatively found an absence of negligence. That "had the effect of flipping the burden of proof," the court wrote, or at a minimum greatly reduced Crocker's burden, citing a 1998 First District decision that ordered a new trial over an erroneous res ipsa instruction. Under settled Florida law, the opinion said, the burden was on Crocker "to affirmatively establish negligence in the first instance."

Both sides had appealed. Crocker challenged an order granting a new trial after additur proceedings. The panel said its ruling rendered any issues with that order moot. Rein had also challenged an order granting partial summary judgment and denying his motion to enforce a settlement; the court found "no merit in the challenge to the settlement ruling" and did not discuss it further.

Lawyers for Crocker included Brent Steinberg of Swope, Rodante P.A. Rein was represented by Warren B. Kwavnick of The Law Office of Warren B. Kwavnick, PLLC.

The case now returns to the Hillsborough County Circuit Court for a new trial consistent with the opinion, which remains subject to revision before official publication.