MIAMI (Legal Newsline) – Hearsay about whether the victim of a fatal workplace accident was wearing head phones was improperly admitted, a Florida appeals court has ruled in giving the man’s widow a new shot at her lawsuit.
The Third District Court of Appeal on Jan. 27 struck down the jury verdict in favor of Werner Enterprises, which has been sued by Gail Dayes over the death of her husband. A tractor-trailer backed over him at a Coca-Cola distribution center in Broward County in 2017.
Harold Dayes was there working as a security guard for a third-party contractor, Securitas Security Services. Dayes, 63 at the time of the accident, had been logging tractor-trailers as they left the center for about a month, as well as checking their loads and sealing their doors.
Werner owned the tractor-trailer that ran him over. It was alleged its driver did not warn Dayes he was going to return an empty tractor-trailer by backing up and it was disputed whether the driver had sounded his horn when doing so.
A detective had testified during a deposition that Dayes was wearing at least one earbud as he died – something Werner’s lawyers brought up during the trial over the objection of plaintiffs counsel.
“The other witnesses who saw Dayes on the ground either could not recall whether he had an earbud in his ear or did not testify to it,” Judge Thomas Logue wrote. “While there was evidence that Dayes had earbuds on his person, and Mrs. Dayes testified that he used earbuds for work purposes, the only evidence that Dayes had an earbud in his ear came from Detective Morales’s relating what Sergeant Franks told him.
“However, according to quotations in the record from Sergeant Franks’s own deposition, Franks himself 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.
“Thus, the result of allowing Detective Morales to testify as to what Sergeant Franks allegedly saw is that a ‘highly impeachable statement . . . was presented for the jury’s consumption without affording . . . an opportunity to cross-examine.’”
The ruling vacates a verdict for Werner and orders a new trial.