        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         DAYANA ST. VIL LOPEZ,
                              Appellant,

                                      v.

   YO ROOFING AND ASSOCIATES, INC., a Florida corporation, and
            SCOTT ALLEN VOORHEES, an individual,
                         Appellees.

                               No. 4D17-2075

                              [June 27, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No. CACE15-
021706 (09).

   Jordan Redavid of Fischer Redavid PLLC, Miami, for appellant.

  James K. Clark of Clark, Robb, Coulombe, Buschman & Charbonnet,
Miami, for appellee Yo Roofing and Associates.

WARNER, J.

    In this appeal from a final judgment finding the defendant not liable in
an auto negligence action, appellant contends that the trial court erred in
denying a challenge for cause to a prospective juror. We agree that the
court erred, where the juror stated that she could not hold an employer
vicariously liable for the negligence of an employee, the plaintiff’s theory of
liability in this case. The challenge should have been granted. We
therefore reverse.

    The appellant was involved in an automobile collision with an employee
of the appellee, Yo Roofing, who was driving a company truck. She filed
suit against the employee for his negligent operation of the vehicle and
against Yo Roofing under the theories of vicarious liability and Florida’s
dangerous instrumentality doctrine. During litigation, the employee died,
and the parties agreed to proceed against Yo Roofing only.

  The case proceeded to trial. During jury selection, the parties
questioned juror Clark, a retired secretary for a carpet company. She was
asked if she could render a verdict against a company whose employee
was negligent, as opposed to a verdict against the employee himself. She
asked counsel her own question: if the employee was drinking, doing
drugs, or had a heart attack, why should the employer be responsible for
him or her? The plaintiff’s counsel then told her to assume that it was a
“he said, she said” situation or an honest accident. Then Plaintiff’s counsel
asked:

      [Plaintiff’s counsel]: If you believed by a preponderance of the
      evidence that the evidence showed that the employee was at
      fault, could you render a verdict knowing that it was against
      the employer, if that employee was just—because that
      employee is in the scope of their employment?

      [Clark]: I don’t think so.

      [Plaintiff’s Counsel]: You don’t think so?

      [Clark]: No.

   During jury selection, appellant challenged Clark for cause, stating that
Clark had said she would be uncomfortable rendering a verdict against an
employer for the negligence of its employee. After the court and the
defense attorney both said they missed that answer of Clark, the court
denied the challenge without further inquiry. Because appellant had
exhausted her challenges, and the court refused her request for additional
peremptory challenges, Clark actually sat on the jury.

    The jury rendered a verdict, finding the employer was not liable.
Appellant moved for a new trial, including in her motion portions of the
transcript excerpted above. Nevertheless, the trial court denied the motion
for new trial. This appeal followed.

   “[I]f there is a reasonable doubt about [a] juror’s impartiality, the juror
should be dismissed for cause.” See Bell v. Greissman, 902 So. 2d 846,
847 (Fla. 4th DCA 2005). “A new trial is required where the trial court
denies a challenge for cause based on a juror's equivocal or conditional
responses that are not rehabilitated and where a reasonable doubt exists
as to whether the juror possessed the requisite state of mind necessary to
render an impartial decision.” Id.

   In this case, Clark expressed her inability to render a verdict against
an employer where the employee was at fault and within the scope of his
employment. In other words, she could not find an employer vicariously

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liable, the sole ground for liability of appellee. There is no question that
the juror expressed a bias against holding an employer liable for an
employee’s negligence. At the very least, there is reasonable doubt as to
Clark’s ability to render an impartial decision.

    In opposition, the appellee contends that appellant should have asked
more questions of Clark to establish the extent of her bias or to clarify her
opinion. There is no such requirement. Her bias was clearly evident.
Appellee also argues that appellant had the duty to bring to the attention
of the court the portion of the transcript where Juror Clark expressed her
inability to find against an employer. However, the duty to determine the
facts is that of the trial court. Here, the answers of the juror were the facts
which should have been ascertained by the trial court. If the trial court
did not remember the answers, the court should have ordered the court
reporter to read that portion of the transcript before denying the challenge.
Moreover, once confronted with the juror’s answers in the transcript,
included in appellant’s motion for new trial, the court should have granted
the new trial because it had failed to grant the challenge for cause.

   Because the court abused its discretion in denying the challenge for
cause, which actually resulted in the seating of a biased juror, we reverse
and remand for a new trial.

TAYLOR and LEVINE, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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