                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                 FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                           MAR 28, 2007
                                     No. 06-12787                        THOMAS K. KAHN
                               ________________________                      CLERK


                          D. C. Docket No. 03-14386-CV-DMM

CYNTHIA JOHNSON, as legal guardian of
Javard Freeman, a minor,

                                                                           Plaintiff-Appellee,

                                             versus

FFE TRANSPORTATION SERVICES, INC.,
a foreign corporation,
TOMMY COLEMAN,
CONWELL CORPORATION,


                                                                     Defendants-Appellants.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                      (March 28, 2007)

Before BARKETT, KRAVITCH and STAHL,* Circuit Judges.

       *
         Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
PER CURIAM:

      On July 22, 2002, Cynthia Johnson, the plaintiff in this action, and Javard

Freeman, her minor ward, were traveling in a church bus on Florida's Turnpike,

headed to Fort Pierce after an evening church service in Apopka. At some time

after midnight, the bus was struck from behind by a tractor-trailer truck driven by

co-defendant Tommy Coleman. Freeman was ejected from the bus and sustained

serious injuries.

      At the time of the accident, the church bus was traveling slowly, between 30

and 45 miles per hour, in the right lane of the turnpike. The bus had suffered a flat

tire in one of its four rear wheels, and was headed for a service plaza several miles

ahead in order to repair the tire. The tractor-trailer was traveling between 67 and

90 miles per hour.

      Johnson brought a negligence action in St. Lucie County Court on behalf of

Freeman against Coleman, FFE Transportation Services, Inc., Coleman's employer

and the owner of the truck, and Conwell Corporation, the owner of the trailer. The

defendants removed the action to federal court on the basis of diversity of

citizenship. At trial, the defendants argued that the combination of the bus's slow

speed, the difficulty of approximating closing distances at night, and the existence

of a patch of fog on the road right before the point of impact meant that they were



                                          2
not negligent, and the jury agreed. The plaintiff moved for a new trial, arguing,

inter alia, that a verdict finding that the defendants were not even 1% negligent1

was against the weight of the evidence. The district judge granted the motion and

ordered a new trial. At the second trial, the jury found that the defendants were at

least partially negligent, and awarded damages to the plaintiff. Defendants now

appeal the grant of a new trial.

       We review a district court's grant of a new trial for abuse of discretion.

Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.

2001). “A judge should grant a motion for a new trial when ‘the verdict is against

the clear weight of the evidence or will result in a miscarriage of justice, even

though there may be substantial evidence which would prevent the direction of a

verdict.’” Id. (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th

Cir. 1984) (internal quotation marks and punctuation omitted)); see Rosenfield v.

Wellington Leisure Prod. Inc., 827 F.2d 1493, 1497-98 (11th Cir. 1987) (using

“great weight” formulation); United States v. Bucon Const. Co., 430 F.2d 420, 423

(5th Cir. 1970).2 “Because it is critical that a judge does not merely substitute his

judgment for that of the jury, ‘new trials should not be granted on evidentiary

       1
           Florida apportions damages based on comparative negligence. Fla. Stat. § 768.81(3).
       2
         In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all former Fifth Circuit decisions issued prior to the close of
business on October 1, 1981.

                                                 3
grounds unless, at a minimum, the verdict is against the great—not merely the

greater —weight of the evidence.’” Lipphardt, 267 F.3d at 1186 (quoting Hewitt,

732 F.2d at 1556).3

       In its opinion ordering a new trial, the district court explained its holding

that a verdict finding the defendants 0% negligent was against the great weight of

the evidence.4 Taking the evidence most favorable to the defendants (which it was

not required to do, see United States v. Hernandez, 433 F.3d 1328, 1335 (11th Cir.

2005)), the court found that Coleman would have observed the bus at 3540 feet

ahead of him approximately 48 seconds before the bus entered the fog and could

no longer be seen. For those 48 seconds, Coleman would have more than halved

the distance between himself and the bus. That rapid closing of distance, over a



       3
          Defendants argue for what they say is a tighter standard for motions for a new trial
based on the weight of the evidence. They say that a new trial should not be granted as long as
there is "some support" for the verdict. Def. Brief at 13. Two of the three cases they cite for this
proposition, however, also state that the standard is whether the verdict is against the “great
weight” of the evidence. See Rosenfield 827 F.2d at 1497-98; Hardin v. Hayes, 52 F.3d 934,
938 (11th Cir. 1995). They have pointed to only one case that uses the “some support” language
without the “great weight” or “clear weight” language. See Redd v. City of Phenix City, Ala.,
934 F.2d 1211, 1215 (11th Cir. 1991). But that case relies on Rosenfeld, Hewitt, and other cases
that use the “great weight” test. Id. We do not necessarily see a conflict in these two
formulations, however, since the “some support” language can be read as just reformulating the
point that the verdict must be against the great, not merely the greater, weight of the evidence (a
test on which the district court explicitly relied). But even assuming that the “some support” test
is more searching, we hold that that standard was met here.
       4
         Under Florida's comparative negligence law, a court may grant a new trial if the
percentages of fault found by the jury are against the manifest weight of the evidence. Rowlands
v. Signal Const. Co., 549 So.2d 1380, 1383 (Fla. 1989).

                                                 4
relatively long period of time, the judge found, precluded the possibility that

Coleman was not at least somewhat negligent, even if he was unable to see the bus

for the five seconds he was in the fog before striking the bus. In this, we see no

abuse of discretion.

      AFFIRMED.




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