Upchurch v. Rotenberry

761 So.2d 199 (2000)

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Nature of the Case

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Facts

Timothy Adam Upchurch was riding in the passenger seat of D's car while D was driving. Adam was the only passenger in the car. D lost control of her vehicle. P claims D left the road suddenly without warning, causing injuries and damages to the decedent that resulted in Adam's death. D maintains that she saw a small animal and swerving to avoid hitting it, left the road and lost control of her car. The vehicle struck a tree on the side of the road, and Adam was killed. There were no eyewitnesses to the collision. P sued D for wrongful death. Evidence from P's expert indicated that the vehicle was driven in a straight line with no scuff marks or skid marks on the road. The speed of the vehicle was 60 mph when it struck the tree. The vehicle traveled 160 feet after leaving the road and before making impact with the tree. The expert stated that D had sufficient time to react once the vehicle left the roadway before it hit the tree. D's expert testified that the tire marks were yaw marks and that the car was traveling at 25-35 mph when it hit the tree. On cross-examination, D's expert stated that the car was going from 42-50 mph when it hit the tree. D introduced into evidence photographs to corroborate the conclusions of its expert. D's expert also testified that the presence of small pebbles between the rim and tire indicated that the car had made an extreme right-hand turn. In discovery, D testified that she would not remember the events leading up to the accident including two days prior to the accident. This testimony was changed 5 weeks later when she claimed a small animal ran across the road and from her reaction she lost control of the car as it went off the road. There was an issue of alcohol on D's breath, but that was not substantiated at examination, but on redirect after an overnight recess, that person changed his testimony to say that he did smell alcohol on the driver the night of the accident. A state trooper testified that D remembered the accident two days later and she had given him the deer story, and she had had two beers earlier in the evening. This appeal resulted. D got the verdict and P moved for judgment notwithstanding the verdict. It was denied, and P appealed.