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 2 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. 3 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))). 4 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 5 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. 6