
    Rosa PETERSON, Appellant, v. CENTRAL FLORIDA REGIONAL TRANSPORTATION, etc., Appellee.
    No. 5D99-2388.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2000.
    Rehearing Denied Oct. 24, 2000.
    Mark A. Cornelius, of Bogin, Munns & Munns, Orlando, for Appellant.
    Bruce Peisner, of Perry & Hicks, P.A., Orlando, for Appellee.
   GRIFFIN, J.

Rosa Peterson [“Peterson”] appeals a final order of the Seminole County Circuit Court granting a directed verdict in favor of defendant, Central Florida Regional Transportation Authority d/b/a Lynx Transit System [“Lynx”] in a negligence action. Peterson sought damages for injuries sustained resulting from a fall while a passenger on a bus owned and operated by Lynx.

At trial, Sandy Smith, Peterson’s sister-in-law, testified that after finishing work she and Peterson at approximately four p.m. caught the Lynx bus home to Apopka. Both Smith and Peterson were frequent riders on this bus route. Shortly after they left work, Smith and Peterson were caught in an afternoon summer thunderstorm and walked to the bus stop in hard rain.

When the bus arrived, Smith entered the bus first, followed next by a female passenger, and then by Peterson carrying a large, wet bag. Peterson began moving to the back of the bus towards Smith who was already seated near the back of the bus. As the bus began to move, Smith testified that she saw Peterson slip and fall:

Q. Where were you looking at when the bus began to pull off?
A. Rosa coming to the back. When the bus started to pull off — by then Rosa had got on the bus and the bus started to pull off. As it pulled off, that’s when I seen her. She fell in front of me.
Q. Well, because the jury wasn’t there, how about describing exactly how she fell.
A. Okay. At the back of the bus — I went to the back of the bus and I sat, you know, like this, facing the front. And he [driver] was standing up there talking to someone. Rosa put her money in, then started to the back. And when he pulled off she slipped and fell.

In fact, Smith testified that Peterson struck Smith’s knee as she fell. Smith could not remember whether Peterson was holding onto a hand rail before the incident, but testified that the floor of the bus was wet that day:

Q. So what caused her to fall was the bus pulling off?
A. Yeah, because when I got on there the little mat that was on the floor, it was slippery for me.

Later on direct, however, Smith clarified her early statements by testifying that Peterson fell as a result of a jerk of the bus as it was moving into traffic:

Q. Now, you stated the bus started to pull off as if it were going back on 436. I’m going to assume that’s where it was heading; is that correct?
A. Yes.
Q. Okay.
A. The traffic light. There’s a lot of traffic in the afternoon. When the bus driver got ready to pull off he stopped I guess because the traffic was coming and, you know, then that’s when, you know, she slipped and fell. But the bus — he did like you know how you jerk a little bit when you’re driving, you’re trying to get in traffic.

Also, on cross-examination, Smith testified that it was a jerk of the bus, after the bus had begun to move, that caused Peterson’s fall:

Q. And so when the bus started to move, the initial movement of the bus did not cause her to fall, she fell a few seconds later; is that correct, when she got to the back of the bus?
A. She wasn’t quite to the back of the bus. When the guy pulled off, that’s when she slipped and fell because he was trying to get in traffic, then he stopped, then she slipped and she fell.

On cross-examination, Smith was adamant that the jerk of the bus was caused by the bus moving into traffic:

Q. Do you have any idea what caused the bus to stop or make this sudden jerk, I mean, without guessing about it? Do you actually know?
A. Going out in traffic. It was midday time for the people to get off from work and there was a lot [of] traffic coining on 436. You ever travel on 436?
Q. Did you actually see that happen?
A. I seen the traffic, yeah. I seen the traffic. I was sitting by the window. I seen the traffic.

The bus driver, Patrick Jarrett, testified that on the day of the accident, he had eighteen passengers on a bus that could hold forty. Traffic was moderate and it was raining. The aisle of the bus had a rubber non-slip surface. Jarrett testified that he had received training from Lynx before commencing his employment that when the floor of the bus is wet to “always think of [the] safety of the passengers and always be cautious.” According to Jarrett, traffic was normal and no person or car pulled out in front of the bus causing him to stop the bus.

Rosa Peterson testified that she worked her way to the back of the bus with a bag in her hand. As she was walking back, she noticed the bus was crowded, the floor was wet and there were puddles on different parts of the floor. The driver then started the bus, she grabbed the railing and paused before she again moved towards the back of the bus. The next thing she realized, she was on the floor.

Although Peterson could not testify as to what caused her fall other than the “bus caused me to fall,” she remembered that it was not the initial moving of the bus:

Q. Would you agree that when the bus initially began to move, you did not ' fall?
A. When the bus moved, no, I didn’t fall.
Q. In fact, you really don’t know what caused you to fall; isn’t that correct?
A. Sir, when I walked down there and I felt the jerking of the bus I hold on to that rail, and I thought it was safe for me to walk on to finish getting in my seat. And the next thing I know, the only thing I remember, I was on the floor.

She also did not know if the jerk she felt before the fall was from the driver hitting the brakes or the shift of the gears:

Q. You don’t know specifically that the bus driver ever touched the brake with his foot, do you?
A. I can’t say that because I wasn’t up there. I don’t know where the brakes are. The only thing I know I just felt a jerk in the bus.
Q. Could it have been the bus just shifting into gear?
A. Could have been.

When considering a motion for directed verdict, the trial court must evaluate the testimony in a light most favorable to the plaintiff including every reasonable inference deduced from the evidence. Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999). Although it is generally held that whether a defendant properly discharged its duty of care is a question for the jury, Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. 5th DCA), review denied, 744 So.2d 452 (Fla.1999), there was no competent evidence of negligence on the part of the driver in the instant case. For example, there is no testimony that the driver negligently pulled into traffic or violently stopped the bus.

Peterson argues, however, that the driver was distracted by another passenger. This does not in and of itself establish negligence without evidence of an omission or commission of an act which was the proximate cause of the plaintiffs injuries. See City Cab Co. v. Green, 308 So.2d 540, 543 (Fla. 4th DCA), cert. denied, 321 So.2d 554 (Fla.1975)(inference that taxi driver was distracted by female passenger in front seat did not constitute “inferable negligence” when no evidence was presented as to why driver applied his brakes). Moreover, there was no evidence that the driver was still talking to the female passenger when the bus began to move into traffic.

Peterson also argues that the driver negligently started the bus while she was standing since it had been raining and the floor of the bus was wet. Peterson, however, could not testify that she slipped on a puddle of water, nor could Smith testify that Peterson fell because of water on the floor. There was testimony that the wet floor was slippery; however, there was no testimony that the wet floor was the proximate cause of Peterson’s fall. Further, although the driver had been trained to use special caution when elderly or handicapped passengers entered the bus and to wait until such persons were seated before moving the bus, Peterson was neither elderly nor handicapped. See Artigas v. Allstate Ins. Co., 541 So.2d 739, 740 (Fla. 3d DCA 1989).

Finally, both Peterson and Smith testified that Peterson did not fall because of the initial movement of the bus, rather, she fell when she proceeded towards the back of the bus after the bus was in motion. Although Smith initially testified that Peterson fell as a result of the first movement of the bus, she later clarified her testimony on both direct and during cross-examination that the secondary jolt when the bus merged into traffic actually caused Peterson’s fall. There was no testimony, however, that the bus driver stopped or jerked the bus in any way other than normal operation.

In Jacksonville Coach Co. v. Rivers, 144 So.2d 308, 310 (Fla.1962), our supreme court articulated the rule to be applied when injuries are sustained as the result of the sudden stop of a passenger bus. The supreme court in Jacksonville said:

Ruling out stops of extraordinary violence, not incidental to ordinary travel, as inapplicable to the stop which occurred here, the sudden stopping of the bus was not a basis for a finding that the bus was negligently operated, in the absence of other evidence, relating to the stop, of some act of commission or omission by the driver which together with the ‘sudden’ stop would suffice to show a violation of the carrier’s duty. This is so because a sudden or abrupt stop, which could be the result of negligent operation, could as well result from conditions and circumstances making it entirely proper and free of any negligence.

Jacksonville, 144 So.2d at 310, citing Blackman v. Miami Transit Co., 125 So.2d 128, 130 (Fla. 3d DCA 1960). Accordingly, the supreme court held:

The facts of the cause before us are the same as those recounted in the Black-man case, supra, in that in both cases, there was evidence of a sudden but unexplained stop; the same indefinite evidence touching the speed of the bus; the same failure ' to show any act of commission or omission which, together with the sudden stop, would demonstrate a violation of the carrier’s duty.

Jacksonville, 144 So.2d at 311. See also Nicholson v. City of St. Petersburg, 163 So.2d 775 (Fla. 2d DCA 1964); Miami Transit Co. v. Ford, 159 So.2d 261, 262 (Fla. 3d DCA), cert. denied, 166 So.2d 594 (Fla.1964). Cf. Transit Cas. Co. v. Puchalski, 382 So.2d 359 (Fla. 5th DCA 1980), review denied, 392 So.2d 1380 (Fla.1981).

AFFIRMED.

THOMPSON, C.J., concurs specially without opinion, without participation in oral argument.

W. SHARP, J., dissents with opinion.

W. SHARP, J.,

dissenting.

I respectfully dissent. In my view, the issues of Lynx’s negligence (ie., the bus driver’s) and breach of a duty of care towards Peterson should have been resolved by a jury, not a directed verdict in favor of the defendant.

A directed verdict should only be granted if the party opposing the motion could not prevail under any reasonable view of the evidence. Bruce Const. v. State Ex change Bank, 102 So.2d 288, 291 (Fla.1958). Accordingly, Peterson was entitled to have all reasonable inferences from the facts that support her claim resolved in her favor, at this juncture of the case. Conda v. Plain, 222 So.2d 417, 418 (Fla.1969); Ginn v. Broward County Transit, 396 So.2d 804, 805 (Fla. 4th DCA 1981); Cruz v. Hundley, 371 So.2d 698 (Fla. 3d DCA 1979).

The record, when taken most favorably to Peterson’s side of the negligence and duty issue, is not a slam dunk for Lynx. When Peterson and her friend boarded the bus, it was raining very hard. They were wet, and the floor of the bus was wet and puddled. The bus driver was busy chatting with a passenger in the front of the bus when they boarded, so he might not have noticed the fact that Peterson was carrying a large, wet bag, and also that at the time he started pulling away from the bus stop, Peterson was still walking down the aisle, towards her friend who had taken a seat in the rear of the bus.

Peterson and her friend testified that the traffic on State Road 436 that rainy afternoon was very heavy. Before Peterson could reach her intended seat, the bus lurched or braked, probably in response to having to meld into the heavy traffic. This caused Peterson to lose her balance, and slip on the wet floor of the bus. Her friend testified the floor was slippery for her and inferred it also caused Peterson’s fall. The fall resulted in Peterson’s injuries, at issue in this lawsuit.

The bus driver testified he had been trained by Lynx that if the floor of the bus is wet, to “always think of [the] safety of the passengers and always be cautious.” That included making sure the passengers were seated, or holding onto handrails before moving the bus, particularly if a person is elderly or handicapped. He had no recollection of Peterson boarding the bus, or falling, until a “disturbance” in the back of the bus caused him to stop and check on a passenger (Peterson) who was on the floor.

The majority relies on an older Florida Supreme Court case, Jacksonville Coach Co. v. Rivers, 144 So.2d 308 (Fla.1962), as being determinative of this one. I disagree. In Rivers, a passenger was thrown from her seat by a sudden, unexplained stop by the bus, in which she was traveling. The passenger, Lille Bell Teel, testified the bus was going “a little bit fast,” but she did not see what caused the driver to make a sudden stop. The driver testified he was forced to stop suddenly to avoid hitting another vehicle. The court ruled that a directed verdict was correct in that case, notwithstanding the obligation of the defendant as a common carrier, to exercise the highest degree of care consistent with the practical operation of the bus. Rivers evolved the rule of law that barring “stops of extraordinary violence not incidental to ordinary travel,” or other evidence to indicate the bus was handled in a careless or negligent manner, or that the accident was caused by a mechanical defect in the bus, it is appropriate to direct a verdict for the common carrier. I submit there was other evidence in the instant case to show negligence concerning the way the bus was handled.

In Transit Casualty Co. v. Puchalski, 382 So.2d 359 (Fla. 5th DCA 1980), this court criticized the Rivers’ rule, suggesting that a better one would be to hold that a presumption of negligence arises which shifts the burden to the defendant to explain how the accident occurred, in the absence of negligence on the part of the bus driver. However, even though there was no violent stop in the Puchalski case, applying the Rivers’ rule, we held that the “circumstances” in that case permitted a jury to infer negligence (inattention) on the part of the bus driver: the bus had stopped behind two cars, almost touching the last, there was a traffic light ahead of the cars, and there was no evidence another vehicle darted in front of the bus. See also McFarland v. Greater Jacksonville Transportation, 711 So.2d 127 (Fla. 1st DCA 1998) (sudden stop at a traffic light, accompanied by evidence of skidding tires without a reasonable explanation, was sufficient to create a jury question on the issue of the taxi driver’s negligence).

It also appears that the Florida appellate courts have rejected a per se rule that a bus driver has no duty to wait for a boarding passenger to sit down before starting to move, unless the passenger appears to be infirm, in need of assistance, or requests help or assistance. Metropolitan Dade County v. Asusta, 359 So.2d 58 (Fla. 3d DCA 1978). In rejecting such an instruction in that case, the court said:

[I]t is apparent, nevertheless, that if the bus driver reasonably could have anticipated trouble in traffic which might cause him to make a sudden stop, then the fact that his passenger was not seated is a circumstance that the jury could lawfully take into consideration in determining negligence.

Metropolitan Dade, 359 So.2d at 59.

Such circumstances were present in this case. As noted above, the record established there were hazardous driving conditions at the time of Peterson’s fall — heavy rain and heavy traffic — and the floor was wet and slippery. These were conditions which should have alerted the driver not to proceed into traffic until all passengers were seated safely. The bus driver was trained not to set the bus in motion until all passengers were seated or holding handrails, under such conditions. Compare Artigas v. Allstate Insurance Co., 541 So.2d 739 (Fla. 3d DCA 1989).

The argument was made that the bus driver did not violate his training instructions because the “not starting the bus until passengers were seated” rule only applied to elderly or disabled passengers. But a construction of the rule in Peterson’s favor is not so limited, and as the driver stated it on the record, it could apply to all passengers where hazardous driving conditions are present. In addition, the record established that Peterson was carrying a large bag, which inhibited her from catching onto handrails or seat backs, with both hands to steady herself. Such conditions, or others (for example, passengers carrying multiple packages or small children), able-bodied persons may also merit special concern about their ability to reach a seat before the bus commences its path of travel.

In my view, the instant case is factually closest to Ginn. In Ginn, a passenger paid her fare, after boarding a bus, and asked the driver for a transfer. The driver told her to hold onto the fare box while he made a turn with the bus. He made several turns and stops. When he came to a stop sign, the passenger went towards the back of the bus to find a seat. The driver saw her go towards the back of the bus, but he did not wait until she reached a seat.

The bus moved out into traffic and made a sudden stop or jerk, causing the passenger to fall and become injured. The court refused to apply the sudden stop rule evolved in Rivers, and held it was proper for a jury to determine whether the bus was operated with the highest degree of care consistent with the practical operation of the bus, when the driver prevented the passenger from initially taking her seat, as he drove into traffic. Obviously, part of the negligence or neglect of duty in that case was also the driver’s failure to wait at the stop sign until the passenger reached her seat, after he saw her going to back the back of the bus.

In this case, the bus driver apparently did not notice Peterson get on the bus due to possible inattention, nor did he observe her difficulties carrying the large bag she had in her hands, nor did he wait under hazardous circumstances (heavy rain and heavy traffic) to make sure she was safely seated before pulling the bus out into traffic. In my view, both Ginn and this case are properly ones which should be resolved by a jury.  