Pedestrian Hit and Killed by Publix Truck Has Case Dismissed

This isn’t my case.

Publix Truck Hits Pedestrian Crossing Interstate on Foot

In the early morning hours of May 29, 2011, Anthony Panzera, was crossing an interstate while walking.  A Publix tractor trailer hit him and killed him.

Estate and Pedestrian’s Parents Sue Publix

The pedestrian’s parents were appointed personal representatives of the estate.  On behalf of the estate and themselves as surviving parents, they sued Publix Super Markets.

This happened in Punta Gorda, Charlotte County, Florida.

They argued that the Publix driver should have acted more quickly and avoiding hitting the pedestrian.

They Sue for Pain and Suffering, Loss of Support, Funeral Expenses

The plaintiff’s claimed loss of support from their “adult child” son, funeral expenses and mental pain and suffering.

The loss of support claim was based on the fact that the decedent lived at home with his parents most of his life.  He was also a caregiver to his mentally disabled stepbrother.

Pedestrian Not Likely Married; Parents Sued for Pain and Suffering

I believe that the decedent was not married at the time of his death. In Florida, the parents of an “adult child” can only recover for mental pain and suffering if the “adult child” is not married.

At 3 a.m., Pedestrian Climbed a Fence and Entered the I-75

Around 3 a.m., the pedestrian walked to I-75, climbed a fence, and entered the interstate.

Publix asked the court to dismiss the case because the pedestrian was illegally crossing the interstate.

Pedestrian Was Wearing Dark Clothing; Bad for His Case

The pedestrian was wearing a dark shirt.  This made it more difficult for the truck driver to see him.  This made the pedestrian’s case tougher.

No Street Lights in the Area; Bad for Pedestrian’s Case

There were no street lights on the interstate in the area of the accident.  This made it tougher for the driver to see the pedestrian.  This hurt the pedestrian’s case.

Truck’s Engine Limited Speed to 65 mph; 5 mph under speed Limit

The semi’s engine was equipped with a governor that limited the speed of the truck to sixty-five miles per hour, which was five miles per hour under I-75’s posted speed limit.

The semi also used a system designed to generate a sudden deceleration report when the semi experienced a drop in speed of seven miles per hour or more in less than one second.

On the night of the collision, the system produced a report, which indicated that the driver was traveling at approximately sixty-five miles per hour when he suddenly began to decelerate.

Truck Driver Says Pedestrian Ran Across Emergency Lane Into His Lane

The truck driver said he first saw the pedestrian when he ran across the emergency lane into his lane of travel. He applied his brakes strongly and steered to the left to avoid him but was unable to avoid the collision.

Officers of the Florida Highway Patrol came to the accident scene.

Officers See Long Skid Marks; Shows the Driver Applied Brakes and Swerved

Both officers saw long skid marks on the road consistent with O’Neal’s testimony that he applied the brakes and swerved to avoid hitting the pedestrian.

Traffic Homicide Say Skid Marks Began 100 Feet Before the Wreck

An officer of the Florida Highway Patrol prepared the Traffic Homicide Investigation Report. He saw skid marks beginning almost one hundred feet before the collision.

He determined that the evidence available at the scene indicated that O’Neal took immediate evasive action, that O’Neal could have done nothing more to avoid the collision, and that the pedestrian caused the collision.

Estate Had No Evidence to Argue Against Officer’s Opinion that Pedestrian Caused the Accident

The estate had no evidence or expert testimony to refute the Florida Highway Patrol officers’ conclusion that the pedestrian caused the accident or in support of their negligence claim against the Publix or the truck driver.

Publix Says Pedestrian 100% at Fault for Crash

The truck driver and Publix argued that the undisputed facts showed that the pedestrian’s own negligence was the only cause of the collision.

Publix Says No Evidence Truck Driver is At Fault

Publix argued that there was no evidence that the driver contributed to the pedestrian’s death.

Trial Court Dismissed the Case

The trial court dismissed the case based on the above.  The estate appealed.

Parents’ Belief that Driver Could Have Avoided Accident is Not Enough

The parents believed that the truck driver could’ve avoided the accident if he would have taken evasive maneuvers and that he must have been able to see the pedestrian before the collision happened.

They based this based on their personal review of the scene after the accident.

Parents Have No Experience in Accident Reconstruction

They didn’t have experience in accident reconstruction.  Their testimony about what the driver did wrong is therefore useless.

Parents Weren’t There When the Accident Happened

They weren’t there when the accident happened.  They’re opinions are just a guess, and the appeals court refused to consider them.

It’s Rare that Pedestrian Accident Case Gets Dismissed

In Florida, it is rare that cases like this get dismissed.  The fact that the decedent allegedly been consuming alcohol before the accident probably made the judge more willing to dismiss the case.

Appeals Court Agrees Case Should Be Dismissed

On December 2, 2015, an appeals court said that the case was properly dismissed.  The case is Panzera v. O’neal, Fla: Dist. Court of Appeals, 2nd Dist. 2015.

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