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Collier County.

The plaintiff’s decedent was a 12-year-old girl who was crossing a Naples street when she was struck by a vehicle owned by the defendant rental car company and driven by the defendant driver. The plaintiff claimed the defendant driver negligently entered the intersection without due caution and that the defendant rental car company was vicariously liable for the driver’s negligence under the Dangerous Instrumentality Doctrine. The defendant driver died of unrelated causes shortly after the accident. The defendants maintained that the girl darted out in front of the defendant’s vehicle which was proceeding on a green light. The case was bifurcated and tried on the issue of liability only.

The minor plaintiff was walking home at 10:00 p.m. after visiting nearby relatives and was crossing Goodlette Road at Fifth Avenue with her two step-siblings. The other children testified that the decedent started across the street when the green "WALK" sign came on in their direction. The witnesses testified that they saw the defendant’s vehicle approaching, that the defendant accelerated and that they yelled to the decedent "Don’t Go!" However, the children testified that it was too late because the little girl had already stepped off the curb.

The plaintiff also called another eyewitness who testified that his car was stopped at a red light on Fifth Avenue. When the light changed to green, the witness testified that he did not immediately proceed into the intersection because he saw the defendant’s car approaching, that the defendant’s car was accelerating and that he "knew" it was not going to stop for the red light. A passenger in this witness’s vehicle testified that the light changed from green to red for the defendant as his car entered the intersection.

The plaintiff’s accident reconstruction expert testified that the defendant driver must have been distracted just prior to the impact. The plaintiff’s expert testified that the overhead "Yield to Pedestrians" sign is a regulatory sign which obligated drivers to yield to children if they are close enough to the roadway to be seen. The plaintiff argued that the sign, coupled with the children’s presence on the corner, created a special or heightened risk which required the defendant to slow his car on approaching the intersection.

The defendant driver gave a statement regarding the accident prior to his death. He claimed that he was driving at 35 to 45 mph in the center lane of Goodlette Road with a green light when the impact occurred. The defendant indicated that he never saw the decedent prior to impact. The defense also maintained that the children were standing in an area that was too dark to be readily observed.

The defendant driver was en-route home from a movie and had his five-year-old son and a neighbor’s child in his car at the time. The evidence showed that the right front headlight area of the defendant’s car struck the minor plaintiff. The girl died two weeks after the accident as a result of the injuries she sustained.

The defendant called a female witness who testified that she was stopped at a red light on Fifth Avenue. The defendant’s witness testified that the defendant was proceeding through the intersection on a green light when the little girl ran in front of his car. The defendant’s accident reconstruction expert opined, given the darkness of the road, the position of the defendant’s vehicle, and the projection of the girl crossing the road, that the defendant had no opportunity to avoid the impact. The defendant introduced photographs of the accident scene at night. The investigating homicide officer also testified that he investigated the accident and determined that the minor decedent was ________% at fault for causing the accident.

After a two-day trial, the jury found that the defendant driver was not negligent.

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