ERROR TO GRANT PLAINTIFF’S LEAVE TO AMEND HAD CLAIM FOR PUNITIVE DAMAGES BASED ON DEFENDANT’S HANDLING OF CELL PHONE JUST PRIOR TO CRASH – DESPITE DEFENDANT’S VIOLATION OF FEDERAL REGULATIONS IN USING THE HANDLED CELLPHONE, THERE MUST BE ADDITIONAL ACTS SHOWING THAT CELLPHONE USAGE WAS RECKLESS OR A CONSCIOUS DISREGARD OF OTHER’S SAFETY 

Mercer v. Saddle Creek Transportation, Inc., 49 Fla. L. Weekly D1396 (Fla. 6th DCA June 28, 2024):

In the predawn hours of the morning, the defendant was driving his semi-truck down a rural two-lane highway in foggy and smoky conditions (captured by the dash cam). He struck the plaintiff’s vehicle, sending it into the car in front of her.

The plaintiff sought punitive damages. She proffered an electronic version of the driver’s dash cam video, which she alleged showed the driver using a cell phone with his hands despite the foggy and smoky conditions a few seconds before the crash. The defendant admitted that 33 to 35 seconds before the crash that the visibility went from “clear” to zero because someone had ignited an unannounced and uncontrolled burn which created a fog.

The trial court granted the motion for punitive damages, reasoning that it had watched the dash cam video and saw the driver handling his cell phone before the crash and having it in an actively engaged position in violation of federal regulations governing the truck’s operation.

In reversing the amendment, the appellate court reminded us that punitive damages are a form of extraordinary relief for acts and omissions so egregious as to jeopardize not only the particular plaintiff in the lawsuit but the public as a whole, such that a punishment, and not merely compensation, must be imposed to prevent similar conduct in the future.

While the federal regulations forbid commercial truck drivers from using handheld cell phones except for emergencies (49 CFR 392.82), the mere use of a cell phone while driving a truck does not automatically provide a reasonable basis for the plaintiff to seek punitive damages. There must be some additional act that shows the cell phone usage was reckless or showing conscious disregard or indifference to others to support the gross negligence needed under section 768.72(2)(b).