Broward County, Florida Feb 5 2021
A jury verdict absolving Werner Enterprises Inc. (NASDAQ:WERN) and one of its drivers from liability for a fatal warehouse accident that occurred in 2017 has been reversed and a new trial ordered.
At issue is whether the jury that ruled against the widow of Harold Dayes, a worker at a Coca-Cola Co. (NYSE:KO) plant in Broward County, Florida, had improperly considered whether Dayes was wearing an earbud when he was run over by a Werner truck driven by Vincent Minott, a Werner driver. The suit was brought by Gail Johnson Dayes, Dayes’ widow. Harold Dayes was described as a security guard working for a third-party contractor who was “tasked with logging tractor-trailers out of the distribution center.”
Attorneys for Werner and Minott were able to read to the jury a deposition given by a police detective who said another officer had told him that Dayes was wearing an earbud when he was found lying on the ground after the accident.
In the ruling handed down last week by a three-judge appellate panel in Florida’s 3rd District Court, the judges ruled that the admission of the evidence about the earbud “constituted inadmissible hearsay.” Werner and the driver, who benefited from allowing that testimony to be heard by the jury, “have not met their high burden of establishing there is no reasonable possibility that the error contributed to the verdict,” the court ruled.
The appellate judges’ recap of the trial suggests that it was a contentious proceeding almost immediately, getting off to a “rocky start” when attorneys for Werner and the driver asked a potential juror, “Can you imagine how you’d feel if somebody told you that you killed someone and you don’t think it’s your fault?”
Dayes and Minott had a discussion about what to do after Minott drove away from a warehouse bay before realizing the truck was empty. The two of them spoke and, in a development that is not in dispute, “they agreed the empty trailer had to be returned to the warehouse.”
But Dayes’ widow argued that Minott got back in his cab, “negligently backed up without taking basic precautions like first locating Dayes … even if this involved getting out of the truck again.”
But the argument by Werner and Minott is that the driver told Dayes he was going to back up, “carefully checked his mirrors … twice honked his horn and slowly backed up at a rate that allowed Dayes ample latitude to step clear if Dayes had been paying attention.”
The appellate court’s decision said there had been significant pushback by Dayes’ widow on whether the Werner driver actually sounded his horn. Minott testified in the trial, and when asked by attorneys for Werner why Dayes might have ignored the horn, he replied: “I don’t know how, how he didn’t hear. That’s the reason why I honk it twice.”
Werner’s answer to that question was that Dayes was wearing at least one earbud. Attorneys for Dayes’ widow objected but the jury heard testimony from Det. Morales (his first name is not disclosed in the court decision) who said that another officer, Sgt. Franks (first name also not disclosed) testified Dayes was wearing at least one earbud “as he lay dying on the ground after the accident.”
The argument made by attorneys for Werner and Minott is that it was the earbud that prevented Dayes from hearing the sound of the truck’s horn.
While the widow of Dayes raised several points on appeal, the court ruled only on one: The admissibility of the testimony on the earbud was “inadmissible hearsay.”
Franks, who Morales cited as the source of the information that Dayes was wearing an earbud, gave his own deposition, according to the court. And in it, he “could not recall whether or not Dayes had an earbud in his ear after the accident and he could not recall making a statement to that effect to Detective Morales.”
Allowing Morales to testify about what he believed Franks told him resulted in a “highly impeachable statement…presented for the jury’s consumption without affording … an opportunity to cross-examine,” the court ruled, quoting an earlier precedent.
Since the evidence that Dayes was wearing an earbud was not admissible, that undercuts the Werner/Minott argument that the driver had sounded his horn, which was in dispute at the trial. But the potential existence of the earbud could help make the argument that the horn was sounded but not could not be heard.
But if an earbud can’t be assumed, the question of potential negligence by the Werner driver arises anew, helping to lead to the decision to order a new trial.