Tuong Vi Le v. Colonial Freight Sys., Inc.

291 So.3d 146

TUONG VI LE, Appellant/Cross-Appellee,

v.COLONIAL FREIGHT SYSTEMS, INC., a foreign corporation, Rodriguez Family Express, a foreign corporation, Atanasio Rodriguez, Richard Llamas, T.A. Operating, LLC, a foreign corporation, John Doe, and Lily Nguyen, Appellees/Cross-Appellants.

No. 1D18-39

District Court of Appeal of Florida, First District.

December 4, 2019

Rehearing Denied March 02, 2020

Ben Murphey of Lawlor White & Murphey, LLP, Fort Lauderdale; Andrew A. Harris and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant/Cross-Appellee.

Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellee/Cross-Appellant Colonial Freight Systems, Inc.

J.W. Taylor, Kristen M.J. Johnson, and Michael Roscoe of Taylor & Associates Attorneys at Law, P.L., Winter Haven, for Amicus Curiae American Trucking Associations, Inc., in support of Appellees/Cross-Appellants.

Lawrence J. Roberts of Lawrence J. Roberts & Associates, P.A., Coral Gables, for Amicus Curiae National Association of Small Trucking Companies, in support of Appellee/Cross-Appellant Colonial Freight Systems, Inc.

Lewis, J.

Appellant, Tuong Vi Le, appeals the Second Amended Final Judgment in which the trial court ordered that she recover $115,541.12 from Appellee, Colonial Freight Systems, Inc. Appellant argues that the trial court erred in determining that Appellee did not have a nondelegable duty to ensure that its trailer was properly maintained and operated in a safe condition and in not ordering that Appellee pay her the total amount of damages as found by the jury in her negligence case. For the following reasons, we reject Appellant's arguments and affirm. We affirm as to the issues raised on cross-appeal without comment.

FACTUAL BACKGROUND

In February 2012, Appellant filed a Complaint against Appellee wherein she alleged that on June 2, 2010, a tire from one of Appellee's trailers detached and collided with the vehicle in which she was a passenger. In her Second Amended Complaint, Appellant added several defendants, including TA Operating, LLC ("TA"), and alleged that TA negligently installed the wheels on the trailer prior to the accident. In 2016, Appellant dropped all defendants except for Appellee.

Appellee subsequently moved for summary judgment, representing that TA performed repairs on the trailer at issue in May 2010 in South Carolina after a fire broke out at the right rear axle of the trailer. In her response, Appellant argued that Appellee "owed [her] a non-delegable duty to inspect, maintain, repair, and operate trailer #5427 in a safe condition under the common law and various trucking regulations." She further argued that Appellee knew or should have known that TA did not do a proper inspection and repair of the damaged parts of the trailer after the brake malfunction and fire. The trial court denied Appellee's motion.

During trial, Appellee denied Appellant's negligence claim and argued that TA, among others, was negligent. One of the stipulated facts read to the jury was that a TA mechanic failed to properly inspect and repair the damages caused by the May 2010 fire, which resulted in damage to the trailer's right rear axle bearings.

Thereafter, Appellant presented the deposition of Ray Floyd, Appellee's vice-president of maintenance. Floyd testified that Appellee had approximately 500 trailers and that he was responsible for taking care of "all of our company equipment." According to Floyd, Appellee "absolutely" worked with TA on a routine basis. It was "not necessarily" any of Appellee's employees' job to review the TA invoices "because the program that is set up with TA is any kind of repairs that need to be done they have authorization to do or to go to whatever extent they feel like is necessary to make that repair." Appellee paid TA approximately $300,000 per year to work on its equipment. With respect to the invoice for the TA repair work at issue, Floyd testified, "I don't think I reviewed this invoice ... until the second instance with the truck or with the trailer where the wheel came off. Then I went back and I reviewed it at that time." Floyd described the invoice as being "sketchy" and "kind of hard to understand," testifying, "It says took drum and hub oiler off to see if any damage was done to the hub and bearings. You can't inspect the bearings without pulling the hub." Floyd further testified that Appellee's inspector who conducted the periodic inspection on the trailer a couple of weeks after the repair was not told about the fire. He explained, "There was not anything to draw attention to this particular trailer because after the repair at TA, you see, I thought everything was good." Floyd later testified of TA, "The way the invoice reads, it looks like they did not do as much as they could have done."

The deposition of Scott Simmons, Appellee's safety director in 2010, was later presented. When asked if anything could have been done to avoid the accident, he replied, "Well, I believe that if the bearings within the hub had been properly inspected and replaced, this incident wouldn't have happened." When asked whether he believed that an inspection as done by a driver, "done exactly the way he's supposed to do it," would have revealed the problems with the wheels prior to the incident involving Appellant, Simmons replied, "In order to inspect the parts that we're talking about here, they are inside of a hub. And the only way to inspect them is to completely take the hub apart, which we would never ask of our drivers on the road. They're not qualified or trained to do that type of work." When asked if he blamed TA for the incident at issue, he replied, "They had the primary opportunity, the technician did, to take this hub apart and thoroughly inspect it after a fire to ensure that there was no damage done to these bearings within the hub."

After the parties rested their cases, Appellant moved for a directed verdict on the basis that "there is a non-delegable duty." The trial court denied the motion. Appellee's counsel argued during his closing argument that TA was "the one that should carry the brunt of the responsibility."

In its verdict, the jury affirmatively answered the question of whether there was "negligence on the part of [Appellee] that was a legal cause of loss, injury or damage" to Appellant. The jury also found that TA's negligence was a legal cause of Appellant's loss, injury, or damage. The jury assigned twenty-three percent of fault to Appellee and seventy-seven percent of fault to TA. The jury determined that Appellant's damages totaled $521,984.39.

In response to the verdict, Appellant filed a Motion for Judgment as a Matter of Law on Apportionment of Fault. Appellant asserted that the trial court "should now hold that [Appellee] is liable for the fault assigned to its retained independent contractor" based on the nondelegable duty of care owed to her by Appellee. Appellant also filed a Motion for Entry of Judgment against Appellee, asserting that the damages award should not be reduced based upon the apportionment of fault.

Although the trial court initially determined post-trial that Appellee was responsible for the actions committed by TA and entered a final judgment in Appellant's favor in the amount of $502,352.70, it subsequently granted Appellee's motion to amend the final judgment. The trial court found that the law did not support a finding of a nondelegable duty on Appellee's part. In support of its ruling, the trial court noted that the driver of the tractor trailer had complied with the pertinent federal trucking regulations relative to his daily trip inspections and that Appellee had performed its required periodic inspection in 2010. The trial court also recognized that the regulations allow motor carriers like Appellee to utilize qualified mechanics and inspectors, that nothing requires a carrier to disassemble a wheel or hub during an inspection to verify that a qualified mechanic performed appropriate repairs, and that it was apparent that a repair facility not only owes a duty to the one who paid for the repairs, but also to third parties who might be endangered by negligent repairs. The Second Amended Final Judgment ordered Appellee to pay $115,541.12 to Appellant. This appeal and cross-appeal followed.

ANALYSIS

Appellant argues on appeal that the trial court erred in determining that Appellee did not have a nondelegable duty to ensure that its trailer was properly maintained and operated in a safe condition. The issue of whether a duty exists is a question of law. McCain v. Fla. Power Corp. , 593 So. 2d 500, 502 (Fla. 1992). Questions of law are reviewable de novo. White v. Wal-Mart Stores, Inc. , 918 So. 2d 357, 358 (Fla. 1st DCA 2005).

As we have explained, "Under the Restatement (Second) of Torts , as well as under Florida case law, a party who hires an independent contractor may still be liable where a nondelegable duty is involved." Dixon v. Whitfield , 654 So. 2d 1230, 1232 (Fla. 1st DCA 1995). A nondelegable duty may be imposed by statute, contract, or the common law. Id. "Unfortunately, there are no specific criteria for determining whether or not a duty is nondelegable except for the rather ambiguous defining characteristic that the responsibility is so important to the community that the employer should not be allowed to transfer it to a third party." Id. ; see also Armiger v. Associated Outdoor Clubs, Inc. , 48 So. 3d 864, 875 (Fla. 2d DCA 2010) (noting that the liability for a nondelegable duty that is imposed directly on an employer of an independent contractor is grounded in a special public policy to protect third persons in an area of inherent danger and to encourage conscientious adherence to standards of safety where injury will likely result in the absence of precautions).

It has been held that a property owner's duty of care towards invitees is a nondelegable duty. U.S. Sec. Servs. Corp. v. Ramada Inn,...