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In O'Malley v. Ranger Construction Industries, Inc., the 4th DCA reversed the trial court's final summary judgment in favor of Ranger, finding that O'Malley's case had not required the impermissible stacking of inferences as had been argued by the defendant.

O'Malley sued Ranger for negligence after O'Malley was injured in a single-vehicle accident on a three-lane portion of highway that Ranger was contracted to resurface. The accident occurred at dusk. It was raining and had been raining most of the day. A witness testified that he saw O'Malley traveling in the far left passing lane at an unsafe rate of speed. Seconds later, he saw O'Malley's vehicle flying sideways through the air. The witness testified that there had been a thin sheet of water on the road, but he did not remember whether there had been any puddles on the road.

A trooper who investigated the accident testified that there was standing water in the middle of the far left lane. The trooper believed O'Malley was driving in excess of the speed limit and his report suggested O'Malley had lost control of the vehicle upon contact with the standing water.

Prior to the accident, Ranger had resurfaced the far right lane but had not performed any work on the middle and far left lanes. Ranger and O'Malley's experts disagreed as to whether the work performed by Ranger had caused O'Malley's accident.

The trial court found that a jury could not reach a verdict for O'Malley without impermissibly stacking the following three inferences: 1) that there was a puddle or area of standing water in the far left lane at the time of the accident; 2) that O'Malley's vehicle had come into contact with the puddle; and 3) that O'Malley's contact with the puddle had caused the accident. Finding that each inference had not excluded other reasonable inferences, the trial court awarded summary judgment in favor of Ranger.

On appeal, Ranger cited the rule regarding the stacking of inferences as outlined in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960):

In a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

The 4th DCA noted that there is an important exception to this rule when the predicate inference is the only reasonable inference that can be made from the evidence. Then it is no longer an inference, but an established fact.

The 4th DCA found that there had been no impermissible stacking of inferences by O'Malley requiring the application of these rules. The court reasoned that Ranger had taken what was essentially one inference - that the standing water had caused the accident - and attempted to stretch that inference out into multiple inferences. Where there was only one inference relating to causation, the party opposing the motion for summary judgment (in this case O'Malley) did not have to establish that the sole inference had been the only reasonable inference.

The 4th DCA reversed the trial court's summary judgment finding that the trial court had erred in basing the summary judgment on the rule against inference stacking.


 

This summary was prepared by Paul Tipton of our firm.


Paul Tipton

 

 


39 Fla. L. Weekly D130b

 

Torts -- Automobile accident -- Action against resurfacing contractor for negligence and failure to warn brought by plaintiff who was involved in single-car accident during rainy weather -- Error to enter summary judgment in favor of defendant on ground that jury could not reach verdict for plaintiff without impermissibly stacking three inferences, that there was puddle or area of standing water in far left lane of roadway, that plaintiff's vehicle came into contact with it, and that this contact caused accident -- There was no stacking of inferences of this case -- Further, summary judgment should not be granted based on a non-movant's failure to meet its trial burden of proof on issue of causation

WILLIAM O'MALLEY, Appellant, v. RANGER CONSTRUCTION INDUSTRIES, INC., Appellee. 4th District. Case No. 4D12-4158. January 8, 2014. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Robin Rosenberg, Judge; L.T. Case No. 502010CA003492XXXMB. Counsel: Bryan S. Gowdy and Jennifer Shoaf Richardson of Creed & Gowdy, P.A., and Steven R. Browning, Jacksonville, for appellant. Eric A. Peterson and Barbara J. Taggart of Peterson Bernard, West Palm Beach, for appellee.

(Ciklin, J.) The appellant, William O'Malley ("O'Malley"), brought a complaint against the Appellee, Ranger Construction Industries, Inc. ("Ranger"), for negligence and failure to warn after O'Malley was involved in a single-vehicle accident on a portion of Interstate 95 that Ranger was contracted to resurface. The trial court granted Ranger's motion for summary judgment, agreeing with Ranger that O'Malley's theory of liability required the impermissible stacking of inferences. We find O'Malley's case does not involve the stacking of inferences and we reverse the summary final judgment.

The trial court had the following evidence before it when ruling on the motion for summary judgment. The accident occurred at dusk on a three-lane portion of Interstate 95. At the time of the accident, it was raining and had been raining most of the day. O'Malley could not remember any details of the accident. The only witness to the accident, another driver, testified in a deposition that he was driving in the far right lane and saw O'Malley traveling in the far left passing lane at a rate of speed the witness believed to be unsafe for the inclement weather conditions. Seconds later, the witness saw O'Malley's vehicle flying sideways through the air in front of the witness's vehicle. The witness testified there was a thin sheet of water on the road, but he did not see any standing water. He clarified on cross-examination that he did not remember whether there were any puddles on the road. O'Malley's vehicle came to rest in the grass next to the far right lane.

Within minutes of the accident, a state trooper arrived at the scene of the accident. O'Malley was taken to the hospital, and the trooper was not able to speak to him. In a deposition, the trooper testified that there was standing water in the middle of the far left lane. He believed O'Malley was driving in excess of the speed limit. The trooper prepared a traffic crash report and accompanying diagram which both suggested that O'Malley lost control of the vehicle upon contact with the standing water.

Up until the point of the accident, Ranger had not performed any work on the middle and far left lanes but had, in fact, resurfaced the far right lane. Ranger's expert opined that Ranger did not do anything that changed the flow of water from the outside (far right) shoulder to the inside (far left) shoulder. The expert could not say with certainty what caused O'Malley to lose control of his vehicle.

According to O'Malley's expert, based on a review of the contract specifications and daily work reports, Ranger failed to immediately remove the standing water as required by the contract, failed to provide adequate drainage, and was responsible for creating a hazardous condition.

The court found that a jury could not reach a verdict for O'Malley without impermissibly stacking three inferences, 1) that there was a puddle or area of standing water in the far left lane at the time of the accident, 2) that O'Malley's vehicle came into contact with it, and 3) that this contact caused the accident. The court found no direct evidence supported any of the inferences, and that each inference did not exclude other reasonable inferences. The court also found that Ranger's theory of causation -- that O'Malley's speed and use of cruise control in the rain caused the accident -- was as reasonable as O'Malley's theory of causation.

"The applicable standard of review on orders granting summary judgment is de novo. Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Additionally, all inferences must be made in favor of the non-moving party." Cohen v. Arvin, 878 So. 2d 403, 405 (Fla. 4th DCA 2004) (citations omitted). "A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law." Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (citation omitted). Further, " 'summary judgments should be cautiously granted in negligence cases,' especially where . . . comparative fault questions exist . . . ." Gibbs v. Hernandez, 810 So. 2d 1034, 1038 (Fla. 4th DCA 2002) (citations omitted). However, summary judgment may be granted based on impermissible inference stacking. Cohen, 878 So. 2d at 405.

The rule relied on by Ranger and the trial court is stated in Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960):

[I]n a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

Id. at 733. There is an important exception to this rule. When a predicate inference is the only reasonable inference that can be made from the evidence, it is no longer an inference but is deemed an established fact. Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403, 407 (Fla. 1954). "Another way of expressing the Voelker exception has been to say that an inference may be admissible into evidence, even though it is based upon another inference, if the other inference has been shown to exist beyond a reasonable doubt." Benson v. State, 526 So. 2d 948, 953 (Fla. 2d DCA 1988) (citation omitted).

There is no stacking of inferences here requiring application of these rules. Ranger has taken what is essentially one inference -- that the standing water caused the accident -- and attempted to stretch it out into multiple inferences. Where there is only one inference relating to causation, the non-movant to the motion for summary judgment does not have to establish that the sole inference is the only reasonable inference. Petruska v. Smartparks-Silver Springs, Inc., 914 So. 2d 502, 505-06 (Fla. 5th DCA 2005). Further, summary judgment should not be granted based on a non-movant's failure to meet its trial burden of proof on the issue of causation. Le v. Lighthouse Assocs., Inc., 57 So. 3d 283, 286-87 (Fla. 4th DCA 2011) (citation omitted) (holding that where a summary judgment movant did not establish an absence of a causal relationship between the negligent acts and the damages, the trial court erroneously shifted the burden of proof to the non-movant when it found the plaintiff did not put forward sufficient evidence of causation). Because the trial court erred in basing its entry of summary judgment on inapplicable inference stacking rules, we reverse.

Reversed and remanded for further proceedings. (Stevenson and Levine, JJ., concur.)






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