FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D19-3737
                 _____________________________

VITRO AMERICA, INC.,

    Appellant,

    v.

MICHAEL T. NGO,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Santa Rosa County.
Darlene F. Dickey, Judge.

                       September 21, 2020


JAY, J.

     In this personal injury action, Defendant, Vitro America, Inc.,
appeals a jury verdict and final judgment awarding Plaintiff,
Michael T. Ngo, just over $8.2 million in medical and non-economic
damages for injuries sustained in a vehicular collision between Mr.
Ngo’s Suburban and Vitro’s truck. At the close of Vitro’s case, the
trial court directed a partial verdict in favor of Mr. Ngo, finding
that Vitro’s driver’s negligence was a proximate cause of the
accident. Because we agree with Vitro that the issue of proximate
cause should have been decided by the jury, we reverse and
remand for a new trial. ∗

                                I.

                         A. The collision.

     In the dark hours before dawn on October 10, 2008, Mr. Ngo
was traveling along Highway 98 on his usual route to work. At the
same time, Michael Turner, a truck driver employed by Vitro, was
executing a back-up maneuver to deliver an order of “small glass”
to a business located on the same highway. At the time, Mr. Turner
was operating an eighteen-wheeled tractor trailer truck. The
backing maneuver initially positioned his articulated truck into a
jack-knifed posture as Turner wheeled the trailer around at a near
ninety-degree angle to the cab and backed into the business.
According to Mr. Turner, the truck’s hazard lights were flashing
and his headlights and running lights were illuminated
throughout the maneuver. In addition, there was reflective tape
along the side of the trailer.

     While Mr. Turner was backing up, he was checking his
mirrors and did not see any vehicles on the highway. But when he
steered the truck back around to straighten up the cab and align
it with the trailer—thereby causing the cab to block the outside,
right lane perpendicular to the road and the flow of traffic—the
first thing he saw to his left were the headlights of an oncoming
vehicle. Mr. Turner testified that only three seconds elapsed from
the moment he first saw the headlights until the vehicle collided
into the cab near the front wheel on the driver’s side. Mr. Turner
did not hear any squealing of brakes and estimated that the
vehicle had been traveling between 50 to 60 miles per hour when
it impacted his cab.

    Mr. Ngo drove that stretch of Highway 98 nearly every day
and had never before seen—and did not expect—an eighteen-
wheeled tractor trailer backing up in his lane of travel. He
maintained that, prior to the collision, he was not distracted, his

    ∗
      Our decision to reverse on this point obviates the need to
reach Vitro’s remaining points on appeal.

                                2
low beams were on, his vehicle was on cruise control set at 50 miles
per hour—despite the legal limit being 55 miles per hour—there
was no natural light, no streetlights, and nothing on the road. As
Mr. Ngo described it:

    I looked and . . . all of a sudden, the truck appeared in
    front of me out of nowhere. It’s like a ghost or something.
    It just pop[ped] out in front. Then when I saw that, I
    thought I had a few seconds and I tried to veer a little bit,
    tried to stop it and stomp the brake, but I just . . . couldn’t
    avoid the collision.

Mr. Ngo had been looking down his lane and estimated he had at
most two or three seconds before he would collide with the truck.
As a result of the high-speed impact, Mr. Ngo suffered extensive
injuries—primarily fractures of the bones in his right leg, ankle
and heel.

                            B. The trial.

    In his opening statement to the jury, Vitro’s attorney admitted
that Mr. Turner was negligent in the manner in which he
maneuvered his tractor trailer. That being said, however, he
queried:

         But here’s what the case is about, who is responsible
    for the crash and Mr. Ngo’s injuries? . . . Was it Mr.
    Turner, was it Mr. Ngo, or was it both? And that’s really
    the question you-all are going to be answering when you
    hear the evidence. That’s especially important in a case
    like this because you’re going to hear that the reason that
    Mr. Ngo’s injuries are so bad is because he hit the vehicle
    at such a high speed.

     During the presentation of his case, Mr. Ngo’s expert, David
Stopper, took the stand. Mr. Stopper was an investigator of
commercial vehicle accidents. He gained his expertise in that field
while working in law enforcement, where he spent the majority of
his career involved in truck and traffic enforcement. In addition,
he received specialized training at various seats of higher learning,
ultimately receiving his certification as an accident
reconstructionist. From his investigation, he estimated that Mr.

                                  3
Ngo was 1400 feet behind a curve in the highway when Mr. Turner
began his backing maneuver. At nine seconds out from the
collision, he calculated that Mr. Ngo was 660 feet from the point of
impact. The cab would have been in his field of vision, but Mr.
Stopper had examined the reflective tape on the truck and noted
that it was irregular. At a forty-five degree angle on the jack-knifed
trailer, the tape would have had less reflectivity and been
“relatively ineffective” to reflect approaching headlights. Mr.
Stopper agreed that the truck’s flashing lights and reflective tape
would, at some point, have been within Mr. Ngo’s field of vision as
he rounded the curve, but theorized that Mr. Ngo would not
necessarily have perceived the images he saw as representing a
hazard, since the flashers could have been misunderstood as a
“turn signal somewhere up the road.” Instead, according to
Stopper, as the highway straightened out ahead of him, Mr. Ngo
would have been unable to “interpret exactly what the movement
of [the truck] was in sufficient time to perceive it, and react . . . to
the obstacle swinging out into his lane,” and it would not have been
unusual under the driving conditions for an average driver to
experience that type of perceptual conflict. In short, based on the
data he had collected, Mr. Stopper opined that Mr. Ngo would have
been unable to avoid the collision.

     In response to Mr. Stopper’s opinion, Vitro called its own
expert, Larry Dewberry. Mr. Dewberry was a consulting engineer,
licensed in the states of Florida, Georgia, Alabama, and
Mississippi. His specialty within the field of engineering was
“failure analysis, such as vehicle accident analysis.” He testified to
having an undergraduate and a master’s degree in electrical
engineering, a master’s degree in mechanical engineering, and a
master’s degree in fire protection engineering. During his career
in professional engineering, Mr. Dewberry had testified as an
expert witness in accident reconstruction.

     From his investigation of the accident, and relying on Mr.
Turner’s deposition testimony, Mr. Dewberry determined that the
truck’s headlights, running lights, and hazard lights were on at the
time of the collision. Given the road configuration, he opined that
the truck would have been visible from 900 feet away, and, had
Mr. Ngo applied his brakes sooner, the accident could have easily
been avoided. Specifically, Mr. Dewberry testified that at the 900-

                                   4
foot mark, Mr. Ngo would have had 10.9 seconds to apply his
brakes in order to avoid the collision.

     Mr. Dewberry also conducted a nighttime simulation of the
accident utilizing the same truck, with Mr. Turner reenacting his
back-up maneuver. (For safety reasons, the simulation was not
conducted at the actual scene.) Mr. Dewberry was in his car,
stationed at a point 500 feet from the truck with his low beams on.
From that vantage point, he never lost sight of the truck’s flashing
lights, its taillights, the reflective tape, and, once the cab turned to
face frontward, the truck’s headlights. His video of the simulation
was published to the jury. According to Mr. Dewberry, during the
entire simulation—as he drove toward the truck—there was never
a point that he could not see a flashing light. Ultimately, he
concluded that an “attentive driver” “very easily” could have
avoided the collision.

     Following Mr. Dewberry’s testimony, Vitro rested its case.
Forthwith, Mr. Ngo’s attorney moved for a partial directed verdict
asking the court to find that the admitted negligence of Vitro’s
driver was also the proximate cause of the accident. Specifically,
counsel argued that the uncontroverted evidence demonstrated
that “but for that negligence, Mr. Ngo’s damages would not have
occurred.” He was quick to add, however, that there might have
been “multiple legal causes” for the accident, so that the ruling
would not necessarily be one on comparative fault. In response,
Vitro’s counsel argued that Mr. Dewberry’s testimony created a
jury question concerning Mr. Ngo’s failure to respond in time. The
trial court, however, agreed with Mr. Ngo, ruling: “[T]here is no
fact for the jury to decide. It has been unanimous through all of
these witnesses[.]” Accordingly, the court granted the motion
finding that Vitro’s negligence was a proximate cause of the
accident.

     Straightaway, Vitro’s attorney renewed his motion for a
directed verdict on both causation and liability, which had been
unsuccessfully argued at the close of Mr. Ngo’s case. Additionally,
he moved for a directed verdict on comparative fault, asserting
that the undisputed evidence proved that Mr. Ngo “could and
should have taken some evasive action to avoid the accident,”
leaving for the jury only the potential question of apportioning

                                   5
fault between the two parties. The trial court ruled that a jury
question remained; that there was the factual issue “of perception
and visual clutter [and] if the jury believed everything [Mr. Ngo’s
expert] witness said, then they could find against the defendant[.]”
Highlighting the incongruity between the court’s ruling that there
was no factual issue on the question of proximate causation as to
Vitro yet there remained a factual question regarding Mr. Ngo’s
involvement in causing the collision, the court confirmed that its
ruling on Mr. Ngo’s motion for directed verdict in no way precluded
the jury from assigning him 100% of the comparative fault.

     Ultimately, the jury returned its verdict. On the special
interrogatory verdict form, it was asked to find if Mr. Ngo was
negligent. It found that he was. It then apportioned fault, finding
Vitro was 99% at fault, and Mr. Ngo was 1% at fault. It awarded
Mr. Ngo $215,218.30 for past and future medical expenses, $1.5
million for past pain and suffering, and $6.5 million for future pain
and suffering, for a total award of $8,215,218.30.

     Vitro’s post-trial motions for a new trial and for remittitur or,
in the alternative, for a new trial on damages, were denied. This
appeal followed.

                            II. Analysis.

     Rarely are motions for directed verdicts appropriate in
negligence cases. Harris v. Gandy, 

, 571 (Fla. 1st DCA
2009) (quoting Howell v. Winkle, 

, 195 (Fla. 1st DCA
2004)); see also Petroleum Carrier Corp. v. Gates, 

,
752 (Fla. 1st DCA 1976) (“We do not here express an opinion as to
whether a directed verdict should [e]ver be granted where the
negligence of both parties is at issue. We do, however, believe that
such cases will be extremely rare.”) A ruling on a motion for
directed verdict is reviewed de novo, “reading the evidence and
inferences of fact in a light most favorable to the non-moving
party.” Philip Morris USA Inc. v. Allen, 

, 469 (Fla.
1st DCA 2013) (citing Morales v. Weil, 

, 178 (Fla. 4th
DCA 2010)). As we elaborated in Allen:

    In other words, a trial court should grant a motion for
    directed verdict only “when the evidence, viewed in the
    light most favorable to the non-moving party, shows that
                                  6
    a jury could not reasonably differ about the existence of a
    material fact and the movant is entitled to judgment as a
    matter of law.” Meruelo v. Mark Andrew [o]f the Palm
    Beaches, Ltd., 

, 250 (Fla. 4th DCA 2009); see
    also Kowkabany v. Home Depot, Inc., 

, 719
    (Fla. 1st DCA 1992) (“[I]n reviewing the propriety of a
    directed verdict, an appellate court must weigh the facts
    and inferences to be drawn therefrom in the light most
    favorable to the person against whom judgment has been
    granted. A directed verdict can be upheld only if there is
    no evidence or inference from the evidence which will
    support the non-moving party’s position.”).

     In Allen, we ruled that the trial court erred in directing a
verdict in favor of the plaintiff on the issue of the plaintiff’s
membership in the Engle class, by removing the “‘addiction
causation’ requirement from the Engle class definition.”

the jury was subsequently charged on the wholly separate
question of comparative fault did not cure the error. This Court
reasoned:

    [T]he separate questions on comparative fault merely
    asked the jury to determine who was responsible, and to
    what degree, for Mrs. Allen’s death; but the Engle class
    definition makes addiction causation a necessary
    precursor to the question concerning the degree to which
    a defendant’s alleged misconduct caused a smoker’s
    disease. Comparative fault in this case focused on an
    entirely different question. Therefore, the jury’s findings
    on that subject cannot cure the omission of any jury
    finding on the crucial addiction causation element.

(emphasis added).

     Just as in Allen, here, too, the trial court jumped the gun in
directing a verdict on the question of proximate causation.
Weighing the facts and factual inferences in the light most
favorable to Vitro, we conclude that had the jurors been allowed to
conduct themselves as the triers of fact on causation, they might
have deduced that Mr. Ngo’s inattentiveness was the sole
                                7
proximate cause of the collision. More precisely, Mr. Dewberry’s
expert opinion—juxtaposed against that of Mr. Spooner—
generated such a palpable factual question on who caused the
accident that only by conflating causation with comparative
negligence was the trial court able to justify directing a verdict on
proximate cause. Paradoxically, the trial court reversed course
when it denied Vitro’s renewed motion for directed verdict by
finding that there was a factual dispute created by Mr. Spooner’s
testimony.

     The negligence of both parties—from a causation
perspective—was irrefutably at issue below. Petroleum Carrier
Corp. v. Gates underscores the point. In Gates, we reversed a
directed verdict on liability in favor of the plaintiff driver—whose
vehicle had been rear-ended by the defendant truck driver—
because it was “axiomatic that a directed verdict should be entered
only where the state of the evidence is such that a jury of
reasonable men could not reach a contrary 

. Specifically, we stated: “Because of the very nature of the
comparative negligence doctrine, situations in which directed
verdicts will be appropriate will occur with even less frequency,
particularly in cases where the plaintiff’s own negligence is in
issue.”

to the facts in Gates, we reasoned
that there was “sufficient evidence from which the jury could have
concluded that the sole proximate cause of the collision was the
inattention of [the plaintiff], or that the sole proximate cause of the
collision was the failure on the part of [the defendant] to have his
vehicle under control, or that both drivers were negligent to some
extent.”

(emphasis added). The very same may be said
of the instant case, especially since there was no evidence of any
superseding cause of the accident. Cf. DZE Corp. v. Vickers, 

. Weekly D1379 (Fla. 1st DCA June 8, 2020) (reversing the trial
court’s denial of defendant manufacturer’s motion for directed
verdict, holding that the driver’s consumption of a dangerous
chemical produced by the manufacturer, and his subsequent
impaired driving, was the sole superseding proximate cause of the
motorists’ deaths in the automobile accident between the driver
and the motorists, and thus, the manufacturer was not liable to
the motorists’ estate for its failure to warn).

                                  8
     Furthermore, the Fourth District’s decision in R.J. Reynolds
Tobacco Co. v. Schlefstein, 

(Fla. 4th DCA 2019),
convinces us that the granting of the partial directed verdict
against Vitro denied it of a critical defense. As was Allen,
Schlefstein is another Engle progeny case. In Schlefstein, the
defendant, R.J. Reynolds, appealed an adverse jury verdict,
claiming that the trial court “erred in limiting its ability to defend
against the decedent’s class membership after it withdrew its
affirmative defense of comparative negligence.”

In
response to the plaintiff’s filing of an amended complaint alleging
that the “‘Engle Phase I findings conclusively established that all
of the Defendants were negligent,’ and that ‘[a]s a proximate result
of the Defendants’ negligence, Plaintiff’s Decedent, sustained
injuries,’” R.J. Reynolds withdrew its affirmative defense of
comparative negligence.

of the trial,
plaintiff’s counsel informed the trial court that he intended to
present in his opening statement a PowerPoint slide reading:
“‘Class Membership is Not About:’ the ‘Fault of either party.’”

claiming the slide presented an inaccurate
statement of the law. Defense counsel argued:

    [I]t is the plaintiff’s burden of proof to show that addiction
    was a legal cause of the disease, which means that these
    other things that they are talking about, her decision to
    smoke, her desire to smoke was the sole legal cause, then
    the plaintiff hasn’t proven their case on class
    membership.

During opening statements, defense
counsel had posited that the case was about what caused the
deceased’s illness, claiming it was not caused by her addiction to
cigarettes, but because she enjoyed smoking. Counsel further
explained that the withdrawal of their comparative negligence
defense “merely removed the allocation of fault question from the
verdict form,” and therefore it “had no effect on Plaintiff’s burden
of proving class membership, nor did it limit Reynolds’ ability to
argue [the deceased] was the sole legal cause of her illness.”

Ultimately, the trial court ruled that R.J. Reynolds could not
“just argue that [the deceased] made a choice to smoke.”

In return, R.J. Reynolds asserted that the court’s ruling “was


                                  9
tantamount to a directed verdict on addiction causation that would
be impossible to navigate during trial.”

District held that “‘[c]omparative
negligence only has the effect of reducing damages if liability is
established.’”

(emphasis in original) (citation omitted).
And it continued: “If the plaintiff was the sole cause of his or her
injuries, the defendant’s conduct cannot be the legal cause.”

this latter proposition, the Fourth District
turned to the Florida Supreme Court’s seminal decision in
Hoffman v. Jones, 

(Fla. 1973).

declaring “that a plaintiff in an action based
on negligence will no longer be denied any recovery because of his
contributory negligence,”

the supreme court went on to
impress:

         This rule should not be construed so as to entitle a
    person to recover for damage in a case where the proof
    shows that the defendant could not by the exercise of due
    care have prevented the injury, or where the defendant’s
    negligence was not a legal cause of the damage. Stated
    differently, there can be no apportionment of negligence
    where the negligence of the defendant is not directly a
    legal cause of the result complained of by the plaintiff. A
    plaintiff is barred from recovering damages for loss or
    injury caused by the negligence of another only when the
    plaintiff’s negligence is the sole legal cause of the damage,
    or the negligence of the plaintiff and some person or
    persons other than the defendant or defendants was the
    sole legal cause of the damage.

the Fourth District in Schlefstein held:
“‘[W]ithdrawal of the comparative negligence defense [does] not in
any way deprive [a defendant] of the right to argue that Plaintiffs’
actions were the “sole legal cause” of their own injuries.’” (quoting
Goulah v. Ford Motor Co., 

, 1485 (11th Cir. 1997)
(applying Florida 

.



                                 10
     That analysis applies with equal force to the present case. The
substance of Vitro’s expert’s testimony was that Mr. Ngo was the
sole legal cause of his injuries. The fact that the jury was charged
with finding whether Mr. Ngo was also negligent in order to
apportion fault did not cure the trial court’s error in directing a
verdict that Vitro’s driver was—as a matter of law—a legal cause
of Mr. Ngo’s harm. As was true in Schlefstein, the defense of
comparative negligence “did not alter” in the first instance Mr.
Ngo’s “burden of proof” or Vitro’s “ability to present evidence to
counter it.”

. 
Instead, the trial court’s ruling improperly
shifted Mr. Ngo’s burden to Vitro, “demonstrably impact[ing]”
Vitro’s “overall presentation of evidence.”
 Id. at 592.
     The case law cited by Mr. Ngo does not persuade us to
conclude otherwise. For example, in Perl v. K-Mart Corp., 
576 So.
2d 
412 (Fla. 3d DCA 1991), the Third District agreed with the
plaintiff that the trial court had erred in denying her motion for a
directed a verdict on the issue of defendant K-Mart’s negligence in
her slip-and-fall lawsuit. The evidence was irrefutable. All of the
witnesses testified that K-Mart’s white hangers represented a
known hazardous condition when lying, chameleon-like, on the
store’s white-tiled floors. Furthermore, it was a known store policy
that the employees were tasked with the duty of clearing fallen
hangers and other floor debris from the aisles to prevent
unsuspecting customers from slipping on them. The Third District
pointed out that, “[n]otwithstanding this acknowledged obligation,
the uncontradicted evidence was that the employee had walked
directly over the hanger,” after which the plaintiff—who was being
escorted by the employee to locate an item—slipped on the hanger
and fell, injuring herself.
 Id. at 413. 
The Third District also
observed that while the plaintiff might have been “contributorily
negligent,” “[a] directed verdict may still lie as against a defendant
whose negligent acts are less than the sole proximate cause of an
injury.”
 Id. at 413-14 
(citations omitted). While that observation is
pure obiter dictum, it is also internally problematic. In light of the
1973 Hoffman decision, the Third District’s use of the phrase
“contributorily negligent” is dated by approximately eighteen
years.
 Id. (emphasis added.) Moreover, 
the dictum appears to
suffer the same conflation of legal causation and (correctly)
comparative negligence as did the trial court’s decision on review.
More to the point, in the case at bar, our defendant adduced

                                 11
evidence from which the jury could have found that our plaintiff’s
actions were the sole proximate cause of his injuries. Accordingly,
we conclude that Perl is not dispositive but, instead,
distinguishable.

     Equally distinguishable are the facts in Maye v. Corderio, 
305
So. 2d 880 
(Fla. 1st DCA 1974), in which we held that the trial
court erred in not directing a verdict as to liability against the
defendant trucking company. The evidence in that case was also
undisputed. The truck driver made a left-hand turn in front of the
plaintiff’s car and, realizing he could not clear the highway,
maneuvered the truck in such a manner that caused the plaintiff
to collide with his front right tire. Furthermore, we noted that the
driver “had plead guilty of not having his vehicle under control,
and knowing as he did of the hazard of driving at the speed he was
driving under the conditions of weather and road, this was
undisputed acts of negligence and the court should have so ruled.”

Id. at 881. 
See also Proctor & Gamble Distrib. Co. v. McGlamery,
341 So. 2d 521
, 521-22 (Fla. 3d DCA 1976) (affirming summary
judgment against the defendant who turned left into the path of
oncoming plaintiff’s vehicle when his view was blocked by a truck
stopped in the oncoming center lane, which driver motioned him
to make the turn).

     The present case presents an altogether different factual
scenario than those in the above-cited cases upon which Mr. Ngo
relies. Vitro’s expert, Mr. Dewberry, incontestably placed into
question whether Mr. Ngo’s inattentiveness was the sole cause of
his harm, given his statements that Mr. Ngo would have been able
to see the truck’s flashing lights in time to come to a complete halt
and avoid the collision. That evidence created a factual issue on
legal causation sufficient to send the question of proximate cause
to the jury, notwithstanding any ancillary issue of comparative
negligence. Vitro, therefore, is entitled to a new trial.

                          III. Conclusion.

      Accordingly, we hold that the trial court erred in granting Mr.
Ngo’s motion for directed verdict. We reverse that ruling and the
final judgment, and remand the cause for a new trial on the issue
of liability and damages.

                                 12
    REVERSED and REMANDED.

RAY, C.J., and BILBREY, J., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Jack R. Reiter and Jonathan L. Gaines of GrayRobinson, P.A.,
Miami, for Appellant.

Timothy M. O’Brien of Levin, Papantonio, Thomas, Mitchell,
Rafferty & Proctor, P.A., Pensacola, for Appellee.




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