Can hands-free cell phone use be punitive?

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 2

CASES FROM THE WEEK JANUARY 17, 2020

PROHIBITION DENIED WHERE DEFENDANT ARGUED THAT JUDGE WAS BIASED AGAINST IT REGARDING ITS CELL PHONE POLICY—COURT FOUND TRIAL JUDGE WAS MERELY “EXPLORING” THE ISSUES IN EVIDENCE.

Sapp v. Olivares, 45 Fla. L Weekly D77 (Fla. 4th DCA January 08, 2020):

After the trial court allowed the plaintiff to amend her complaint to add a claim for punitive damages against both the defendant Publix, and its driver (the driver was on his hands-free cell phone while driving a Publix truck and killed the decedent after running a red light), the defendants sought to disqualify the trial judge for being biased about the issue. When the trial judge refused to disqualify himself, defendants sought a writ of prohibition seeking the trial judge’s removal.

The record was filled with evidence demonstrating that the driver was on his cell phone. Also, the record showed that while Publix specifically trains its truck drivers on maintaining speed, looking ahead at traffic, scanning at intersections, paying attention to their surroundings, and avoiding distractive driving, this training and Publix’s actual cell phone policy were inconsistent. While the training emphasized speed management scanning and attentiveness, Publix incongruously allows hands-free cell phone use, which is distracting.

The plaintiff produced a copy of the Florida Commercial Driver’s License Handbook, which specifically addressed distractions by the use of cell phones, and warned against such distractions, specifically stating that hands-free devices are no less likely than hand-held cell phone devices to cause a person to become distracted. The driver’s cell phone records demonstrated that he had been on his phone most of the day, and he admitted he was in the habit of talking on his phone to friends and co-workers.

The Publix Safety Supervisor conceded that talking on the cell phone was multitasking, which did lead to reduced attentiveness. Even Publix’s supervisors would call the drivers on their cell phones while they were driving.

During the extensive hearing, the trial judge asked questions using the Socratic method, comparing cell phone driving to drunk driving, and asking whether there were companies that had a “no cell phone” policy, etc. The court highlighted the various questions that the defendants had argued demonstrated the trial judge’s bias on the issue of punitive damages.

However, after reviewing the record in detail, the Fourth District observed that where a judge’s comments are directed to an issue the court is currently handling, a motion to disqualify can be denied. The court then observed that the comments made by the trial judge did not warrant disqualification, because they were all directed to the issue of whether the use of cell phones while driving and a policy to permit such use, could provide a reasonable showing to support a claim for punitive damages.

As every allegedly objectionable statement was relevant to that issue and showed that the judge engaged in a Socratic method of questioning to analyze the issue, there was not evidence of bias. Mere mental impressions or opinions formed in a progress of an argument do not require disqualification.

The court concluded that none of the judge’s comments either individually or collectively showed bias or prejudice on behalf of the trial judge, which would prevent either Publix or the driver from receiving a fair trial. The trial judge did not disparage counsel or the parties, and the parties both had ample time to argue their positions. Also, the court did not rule prior to the completion of the party’s presentations.               

ON A SEPARATE WRIT INVOLVING THOSE SAME FACTS, BECAUSE THE TRIAL COURT CONFORMED TO PROCEDURAL REQUIREMENTS OF THE STATUTE IN ALLOWING AN AMENDMENT FOR PUNITIVE DAMAGES, THE APPELLATE COURT COULD NOT REVIEW THE SUFFICIENCY OF THE EVIDENCE OR THE REASONABLENESS OF THE DETERMINATION.

Sapp v. Olivares, 45 Fla. L Weekly D81 (Fla. 4th DCA January 08, 2020):

The defendants in this same case also sought a writ of certiorari arguing that the evidence presented was insufficient to make a reasonable showing that punitive damages were recoverable and that the court’s limited findings were not sufficient to justify a claim for punitive damages.

However, the court concluded that because the procedural requirements of the statute were followed i.e., (1) attachment of a proposed Amended Complaint to the Motion to Amend; (2) service of the proper Order or other evidence to support the punitive claim; and (3) an affirmative finding by the trial court that the plaintiff made a reasonable showing by evidence to support a punitive damage claim, the court was precluded from reviewing the defendant’s claims addressing the sufficiency of the evidence, or the reasonableness of the trial court’s determination.