New trial ordered in lawsuit against Werner Enterprises, driver

January 29, 2021

SJ Munoz


Inadmissible hearsay led to the Third District Court of Appeals of Florida ordering a new trial in a wrongful death lawsuit filed against Omaha, Neb.-based Werner Enterprises Inc., and a company driver.

In the original trial, a jury determined that the truck driver, Vincent Minott, was not negligible in the death of a 63-year-old security guard.

The appeals court ruled on Wednesday, Jan. 27, that the lower court improperly allowed Werner to read a police detective’s deposition that speculated whether the security guard was wearing earbuds at the time of the incident. The appellate court said the testimony constituted inadmissible hearsay and found the defendants were unable to meet their burden to prove “there is no reasonable possibility that the error contributed to the verdict.”

The lawsuit was filed by Gail Johnson Dayes, the widow of Harold Dayes, a security guard at a Coca-Cola distribution center in Broward County, Fla., who succumbed to his injuries after a Werner truck backed over him at the distribution center in 2017.

Gail Johnson Dayes appealed the lower court’s ruling.

Much of the original trial centered around if Minott sounded his horn and, if so, whether or not Dayes was able to hear it.

Minott said he used one of the truck’s two horns. However the lone independent witness, who was “using a loud pressure cleaner at the time, did not hear the truck horn. In addition, Minott was not consistent with which of the truck’s horns he used.

It was also disputed how the truck should return to the warehouse after it was discovered by both parties the trailer was empty.

What’s more, an officer testified another officer told him Dayes had an earbud in his ear as he laid on the ground, according to the deposition Werner was improperly allowed to read.

While there were earbuds on his person, other witnesses did not testify they were in Dayes’ ear.

According to the appeal court panel, the “inadmissible hearsay” strengthened Werner’s argument.

“Among other things, the hearsay that Dayes had at least one earbud in his ear provided the defendants a ready way to reconcile Minott’s testimony that he honked the horn with the fact that Dayes did nothing to heed the warning,” Judge Thomas Logue said.

The panel also noted, according to the officer’s deposition, that he could not remember if Dayes had an earbud in his ear and couldn’t remember making such a statement.

“While the testimony that Dayes had an earbud in his ear was obviously relevant to the issue of whether Dayes was comparatively negligent, it also bore on the credibility of Minott’s version of events and therefore on the question of whether Minott was negligent,” Logue said. LL

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SJ Munoz joined the Land Line Media team in 2020. He brings a variety of skills to the job as he has experience as a reporter, photographer and in radio. He’s also written for Omaha Magazine, the Lawrence Journal-World, and