Plaintiff Gets A New Trial On Damages But Not On Liability

Sandra Faraldo was injured in an automobile accident and she brought a lawsuit against Geoffrey Choy and his employer Vocelli Pizza.

At trial Faraldo alleged that Vocelli Pizza was vicariously liable for the acts of Choy, because Choy was acting within the course and scope of his employment as a pizza delivery driver at the time of the incident.

Faraldo also alleged that the automobile accident rendered her incapable of earning future income. In disputing the allegation that she could no longer work, the lawyer for Vocelli displayed a sports illustrated magazine that pictured Marc Buoniconti sitting in a wheelchair. As the defense lawyer showed the picture to the jury he inferred that Mrs Faraldo was capable of working.

The jury returned a verdict against Choy only, and for an amount that was for far less than what she sought.

Faraldo moved for a new trail arguing that the closing argument was prejudicial and inflammatory. The trial court agreed and granted a new trial on liability and damages

THe 4th DCA Affirmed the trial courts decision to grant a new trial on the issue of damages, but reversed the Order granting a new trail on the issue of liability against Vocelli.

The court reasoned that the jury returned a verdict finding Choy solely liable for the accident, and the improper argument did not affect the issue as to whether Choy was acting within the course and scope of his employment at the time of the accident.

The victory for the Plaintiff may be a hollow one. To that end she will get a new trial on damages, but she may not be able to collect on a Final Judgment.

The issue of employer liability is one that we, as Personal injury Lawyers, encounter frequently. Most restaurants that offer a delivery service hire the drivers as independent contractors. The court and/or jury will then look at the elements and determine whether the employer exercised sufficient control over the “driver” so as to render him an “employee”. Some factors to look at are:

Schedule
Salary
Gas
Insurance