Crocker v. Rein
CourtDistrict Court of Appeal of Florida
Date FiledNovember 13, 2026
Docket2D2024-2805
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
LESLIE CROCKER,
Appellant/Cross-Appellee,
v.
MICHAEL REIN,
Appellee/Cross-Appellant.
No. 2D2024-2805
November 13, 2026
Appeal from the Circuit Court for Hillsborough County; Caroline Tesche
Arkin, Claudia Rickert Isom, and Lindsay M. Alvarez, Judges.
Brent Steinberg and Brenna Spinner of Swope, Rodante P.A., Tampa, for
Appellant/Cross-Appellee.
Warren B. Kwavnick of The Law Office of Warren B. Kwavnick, PLLC,
Pembroke Pines, for Appellee/Cross-Appellant.
KHOUZAM, Judge.
This is an appeal and cross-appeal arising from a jury trial
regarding a motorcycle accident. Plaintiff/Appellant Leslie Crocker
challenges an order granting a new trial following additur proceedings.
Defendant/Cross-Appellant Michael Rein challenges an order granting
partial summary judgment and denying a motion to enforce settlement,
as well as a res ipsa loquitur jury instruction given at trial.
We find no merit in the challenge to the settlement ruling and
comment on it no further. But as we now explain, we reverse and
remand for a new trial because the res ipsa loquitur instruction was
erroneously given, rendering moot any issues with the new trial order.
BACKGROUND
The parties agree that Ms. Crocker was sitting behind Mr. Rein as a
passenger on his motorcycle when he lost control of it and ran off the
road, injuring her. But nobody was sure about what caused the crash;
there was no evidence of a collision, road debris, intoxication, a
mechanical defect, or any other clear precipitant for the loss of control.
Mr. Rein testified that the motorcycle began to fishtail immediately
after Ms. Crocker had leaned forward and pointed off the road to the side
to show him where her daughter lived. Ms. Crocker's expert admitted
that a motorcycle passenger could move in such a way as to cause a
driver's loss of control, but he opined that Ms. Crocker's movements were
insufficient to do so. Ms. Crocker's expert also admitted that he could
not rule out other causes for this accident, such as an unnoticed
environmental hazard, and, further, admitted that Mr. Rein's motorcycle
could have behaved the way it did without any rider error at all.
At the charge conference, Ms. Crocker's counsel requested the
standard instruction on res ipsa loquitur. Ms. Crocker's counsel argued
there was no dispute that Mr. Rein had exclusive control of the
motorcycle because he was driving it and that the accident would not
ordinarily have occurred without negligence because it was a single-
vehicle accident with no clearly identified cause.
In response, Mr. Rein's counsel disputed both points, identifying
that Ms. Crocker's own expert admitted she was able to exert control over
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the motorcycle as a passenger and, further, that her expert agreed that
this particular crash could have occurred without any negligence.
The trial court asked whether the res ipsa loquitur instruction "still
allows [the jurors] to not find liability if taking into consideration all the
evidence in the case they find that the event was not due to any
negligence on the part of the defendant?" After Ms. Crocker's counsel
answered in the affirmative, the court ruled that it would give the
instruction. The court accordingly instructed the jury as follows:
If you find that ordinarily the crash would not have
happened without negligence, and that the motorcycle
causing the injury was in the exclusive control of Defendant,
Michael Rein, at the time it caused the injury, you may infer
that Defendant, Michael Rein, was negligent unless, taking
into consideration all of the evidence in the case, you find
that the crash was not due to any negligence on the part of
Defendant, Michael Rein.
The jury returned a verdict for Ms. Crocker. After further
proceedings not relevant to this opinion, both parties timely appealed.
ANALYSIS
Generally, the "decision to give or withhold a jury instruction is
reviewed under an abuse of discretion standard." ITD Indus., Inc. v. Bus.
Res. Grp., 779 So. 2d 532, 534 (Fla. 2d DCA 2000). "An abuse of
discretion occurs where the trial court's 'ruling is based on an erroneous
view of the law or on a clearly erroneous assessment of the evidence.' "
Buzby v. Turtle Rock Cmty. Ass'n, 333 So. 3d 250, 253 (Fla. 2d DCA
2022) (quoting Rush v. Burdge, 141 So. 3d 764, 766 (Fla. 2d DCA 2014)).
The doctrine of res ipsa loquitur "provides an injured plaintiff with
a common-sense inference of negligence where direct proof of negligence
is wanting, provided certain elements consistent with negligent behavior
are present." Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.
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2d 1339, 1341 (Fla. 1978). "Essentially, the injured plaintiff must
establish that the instrumentality causing his or her injury was under
the exclusive control of the defendant, and that the accident is one that
would not, in the ordinary course of events, have occurred without
negligence on the part of the one in control." Id. at 1341-42.
Our supreme court has repeatedly cautioned that the doctrine is
one "of extremely limited applicability." Id. at 1341; see also McDougald
v. Perry, 716 So. 2d 783, 785 (Fla. 1998) ("We continue our prior
recognition that res ipsa loquitur applies only in 'rare instances.' "
(quoting Goodyear, 358 So. 2d at 1342)). Consequently, "[g]iven the
restrictive nature of the doctrine, a court should never lightly provide this
inference of negligence." City of New Smyrna Beach Utils. Comm'n v.
McWhorter, 418 So. 2d 261, 262 (Fla. 1982).
Under this framework, "res ipsa is ordinarily unavailable to the
plaintiff in automobile accident cases." Burgin v. Merritt, 311 So. 2d 688,
691 (Fla. 3d DCA 1975) (citing McGinley v. Chancey, 70 So. 2d 357 (Fla.
1953); Abrams v. Nolan Brown Cadillac Co., 228 So. 2d 131 (Fla. 3d DCA
1969)). Recognized exceptions to this general rule are very limited, such
as where the defendant loaned someone a defective vehicle, see
Yarbrough v. Ball U-Drive Sys., 48 So. 2d 82, 84 (Fla. 1950) (reasoning
that such a circumstance "falls within the exception to the rule like those
instances where injuries have resulted from the explosion of bottles
containing carbonic acid gas that had passed from the possession of the
vendor to the possession of the consumer"), and in so-called "wayward
wheel" cases, see McDougald, 716 So. 2d at 786 (explaining that "the
doctrine of res ipsa loquitur is particularly applicable in wayward wheel
cases" (citing Cheung v. Ryder Truck Rental, Inc., 595 So. 2d 82, 83 (Fla.
5th DCA 1992))).
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Here, the res ipsa loquitur instruction should not have been given
because neither of its elements were met in the context of this case.
With respect to the element of exclusive control, even though Mr.
Rein was driving the motorcycle, Ms. Crocker's own expert admitted that
a passenger can also exert some control over the vehicle and can thereby
cause the driver to lose control of it. This admission is particularly
relevant in the context of Mr. Rein's testimony that Ms. Crocker was
moving and gesturing immediately prior to his loss of control. Thus, the
evidence in the case was actually undisputed that Mr. Rein was not in
exclusive control over the motorcycle while Ms. Crocker was a passenger.
Likewise regarding whether the accident ordinarily would occur
without the defendant's negligence, the trial evidence affirmatively
established that motorcycles can and do crash without negligence on the
part of the driver. Even Ms. Crocker's expert admitted that he could not
rule out other common causes—like environmental hazards—for this
crash. Indeed, he acknowledged that motorcycles can behave like Mr.
Rein's did here even without any rider error at all.
We emphasize that this is not a "wayward wheel" case or one of
defective instrumentality, which represent narrow exceptions to the
doctrine's general unavailability in automobile cases. See McDougald,
716 So. 2d at 786; Yarbrough, 48 So. 2d at 84. To the contrary, there
has been no suggestion of a wayward wheel or anything like it, and the
parties affirmatively stipulated below that this accident was not caused
by a mechanical defect.
The error in giving this instruction was not harmless. With it, as
the trial court expressly acknowledged, the jury was permitted to infer
the ultimate issue of Mr. Rein's negligence unless it affirmatively found
an absence of negligence. This had the effect of flipping the burden of
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proof or, at a minimum, "greatly reducing [Ms. Crocker's] burden." See
Wal-Mart Stores, Inc. v. Rogers, 714 So. 2d 577, 579 (Fla. 1st DCA 1998)
(reversing for a new trial due to erroneous res ipsa loquitur instruction).
Under settled Florida law, the burden was on Ms. Crocker to affirmatively
establish negligence in the first instance. See, e.g., Naples Ests. Ltd.
P'ship v. Glasby, 331 So. 3d 863, 867 (Fla. 2d DCA 2021) (" '[T]he
obligation to establish the truth of the claim . . . rests throughout upon
the party asserting the affirmative of the issue, and unless he meets this
obligation upon the whole case he fails.' " (quoting In re Ziy's Est., 223
So. 2d 42, 43 (Fla. 1969))).
Because the res ipsa loquitur instruction was erroneously given
and the error was harmful, we reverse and remand for a new trial. This
disposition renders any issues with the new trial order moot.
Reversed and remanded for a new trial consistent with this opinion.
NORTHCUTT and LaROSE, JJ., Concur.
Opinion subject to revision prior to official publication.
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