FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-0451

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CITY OF GAINESVILLE, d/b/a 

GAINESVILLE REGIONAL 

UTILITIES,

Appellant,

v.

JACOB T. RODGERS,

Appellee.

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On appeal from the Circuit Court for Alachua County.

Donna M. Keim, Judge.

November 29, 2023

BILBREY, J.

The City of Gainesville appeals the judgment entered in a civil 

suit following a tragic accident that resulted in catastrophic injury 

to Jacob T. Rodgers. Because the trial court abused its discretion 

in denying the City’s motion for a new trial, we reverse and remand 

for further proceedings. 

Factual and Procedural Background

Three friends were traveling home from an evening class at 

their local community college in a pickup truck driven by Hank 

Blackwell. Rodgers was a backseat passenger in the truck. 
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Blackwell’s truck was struck by an SUV belonging to the 

Gainesville Regional Utilities, an agency of the City of Gainesville. 

The driver of the City’s SUV, William Stormant, had failed to stop 

at a stop sign. After Blackwell’s truck was struck, it rolled, and 

two of the passengers were ejected. Sadly, Rodgers was one of 

them, and he was rendered paraplegic. At the time of the accident, 

Rodgers was not wearing a seat belt, and the truck driven by 

Blackwell was traveling more than ten miles over the posted speed 

limit. 

Rodgers sued Stormant and the City for negligence, though 

Stormant was later dropped as a defendant. The City raised 

several defenses, including the defense that the suit was barred by 

the doctrine of sovereign immunity. The City then moved for 

summary judgment on the ground of sovereign immunity. The 

trial court denied that motion, and in its written order of denial, 

the trial court found as a matter of law that “the doctrine of 

Sovereign Immunity does not bar the instant action as [Stormant]

was in the course and scope of his employment based upon the 

application of the dual-purpose exception to the going and coming 

rule to the undisputed facts.”

The City took an interlocutory appeal to this court, and we 

affirmed the trial court’s order without comment. City of 

Gainesville v. Rodgers, 272 So. 3d 377 (Fla. 1st DCA 2019). 

As the case returned to the trial court, the City again argued

that the suit was barred by sovereign immunity. The trial court 

ruled, though, that the issue was settled under the doctrine of law 

of the case by this court’s affirmance of the order denying summary 

judgment. In this appeal, the City continues to maintain Rodgers’

lawsuit is barred by sovereign immunity. 

Another recurring issue at the lengthy trial was what Rodgers 

could argue regarding his failure to wear a seat belt. He sought to 

inform the jury that there is no Florida law requiring a backseat 

passenger to be seat belted. The City responded that such a claim 

would be misleading to the jury as to the issue of negligence, and 

the trial court agreed. So before closing arguments, the parties 

were instructed not to “mention the law regarding seat belts.”
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During its deliberations, the jury submitted several questions. 

Pertinent to the instant appeal, one question referred to the 

language on the verdict form which asked the jury to consider “was 

there negligence on the part of the plaintiff Jacob Rodgers which 

was the legal cause of loss, injury, or damage to plaintiff Jacob 

Rodgers.” The jury asked about this language, asking “does this 

mean it is legal to not wear a seatbelt in the backseat or not? What 

does the word legal refer to?” After considerable discussion with 

counsel, the trial court gave the following written response: “Read 

the instructions and all of the questions on the verdict form and 

answer it in light of all of the evidence.” 

Later during deliberations, there was a jury question asking 

for additional instructions on the meaning of negligence. The trial 

court and counsel agreed to tell the jury to reread the instructions. 

The trial court was then handed a note reading:

I feel that negligence was not explained well enough to 

base an opinion on this case, and we were ill prepared to 

determine a settlement amount. I feel that 5 of the jurors 

already were decided before deliberations, and that the 

settlement amount was not based on any kind of 

methodology.

With the agreement of counsel, the trial court responded: 

“Continue to deliberate.” 

The jury ultimately returned a verdict for Rodgers. It found 

no negligence on the part of Rodgers or on the part of Blackwell. 

Instead, Stormant was found to be one hundred percent at fault. 

Over $114,000,000.00 was awarded by the jury for non-economic 

damages. 

The City moved for a new trial on two grounds — that the 

verdict was excessive and that it was against the manifest weight 

of the evidence. The evidence at trial was that Rodgers was not 

wearing a seat belt and that Blackwell’s vehicle was traveling at 

an excessive rate of speed. Both these factors contributed to the 

injuries sustained by Rodgers, the City argued. It also argued that 

the jury was likely confused as to whether the lack of statutory 

requirement about seat belt use in a backseat prevented a finding 
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of any comparative negligence by Rodgers. The City asserted that 

counsel for Rodgers made the issue confusing for the jury, as 

evidenced by the jury questions. The City also sought remittitur

claiming that the non-economic damages award was excessive. See

§ 768.74(3), Fla. Stat. (2015). 

The trial court denied a new trial but did grant remittitur 

reducing the verdict for non-economic damages to $13,000,000.00. 

Rodgers appealed the order granting remittitur, and the City 

cross-appealed the denial of a directed verdict as well as the denial 

of a new trial. After we questioned whether the order granting 

remittitur was an appealable final order citing Stanberry v. 

Escambia County, 813 So. 2d 278 (Fla. 1st DCA 2002), Rodgers 

requested that we relinquish jurisdiction to the trial court to 

secure a final judgment. We did so and the trial court then entered 

a final judgment consistent with its grant of remittitur. Including 

economic damages, the final judgment entered was for 

$18,319,181.20. Rodgers’ appeal was then dismissed by this court. 

See Omni-Vest, Inc. v. Reichhold Chems., Inc., 352 So. 2d 53 (Fla. 

1977). But the City’s cross-appeal remained. 

The City in an abundance of caution also appealed the final 

judgment in a separate appeal — the instant appeal. For a time, 

the City’s cross-appeal and its separate appeal here were pending. 

Both parties agreed that dismissal of the City’s cross-appeal was 

appropriate given the identity of issues with the instant appeal, so 

we dismissed the cross-appeal. 

Here, the City again argues that the trial court erred in not 

finding the cause barred by sovereign immunity. It also now 

argues that the trial court erred in denying its motion for a new 

trial. 

Sovereign Immunity

Earlier in the trial court proceedings, the City moved for 

summary judgment on the ground of sovereign immunity. A motor 

vehicle is a dangerous instrumentality. Susco Car Rental Sys. of 

Fla. v. Leonard, 112 So. 2d 832, 835–36 (Fla. 1959). As a result,

the owner of a motor vehicle is normally liable for the negligence 

of the driver of the vehicle. Id. But the waiver of sovereign 
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immunity in section 768.28, Florida Statutes (2015), is specific and 

does not allow the dangerous instrumentality doctrine to overcome 

immunity. Rabideau v. State, 391 So. 2d 283, 284–85 (Fla. 1st 

DCA 1980), aff’d, 409 So. 2d 1045 (Fla. 1982). Accordingly, the City 

could only be liable for Stormant’s negligence if he was acting 

within the course and scope of his employment at the time of the 

crash. See § 768.28(1), Fla. Stat. (waiving sovereign immunity for 

the State and “its agencies or subdivisions” for negligence “of any 

employee of the agency or subdivision while acting within the 

scope of the employee’s office or employment”); see also § 768.28(9), 

Fla. Stat.; City of Winter Park v. Veigle, 367 So. 3d 568, 571 (Fla. 

5th DCA 2023). 

When the trial court denied the City’s motion for summary 

judgment it found as a matter of law that Stormant was acting 

within the course and scope of employment when the accident 

occurred. Since we affirmed the denial of summary judgment, 

Rodgers, 272 So. 3d at 377, the trial court correctly held that our

summary affirmance of the prior order operated as law of the case. 

Thus, the trial court could not revisit the issue of sovereign 

immunity. 

“The doctrine of the law of the case requires that questions of 

law actually decided on appeal must govern the case in the same 

court and the trial court, through all subsequent stages of the 

proceedings.” Florida Dep’t of Transp. v. Juliano, 801 So. 2d 101, 

105 (Fla. 2001) (citing Greene v. Massey, 384 So. 2d 24, 28 (Fla. 

1980)). An interlocutory appeal may establish the law of a case. 

See Schempp v. Schempp, 339 So. 2d 672, 673 (Fla. 1st DCA 1976). 

While the City has argued that our summary affirmance in 

Rodgers precludes application of the law of the case, in fact, a per 

curiam affirmance is sufficient. See Arch Se. Commc’ns, Inc. v. 

Abraham Commc’ns, Inc., 702 So. 2d 556, 558 (Fla. 2d DCA 1997); 

see also Morris v. Winbar LLC, 273 So. 3d 176, 178 (Fla. 1st DCA 

2019) (discussing law of the case after an affirmance without a 

written opinion). 

The law of the case doctrine is not absolute. Instead, “it also 

provides that an appellate court has the power to reconsider and 

correct an erroneous ruling that has become the law of the case 

where a prior ruling would result in a ‘manifest injustice.’” 
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Juliano, 801 So. 2d at 106 (quoting Strazzulla v. Hendrick, 177 So. 

2d 1, 5 (Fla. 1965)). Here, we do not find a manifest injustice has 

resulted, and consequently, we decline to reconsider the 

applicability of sovereign immunity. See Strazzulla, 177 So. 2d at 

4 (explaining that law of the case should apply “except in unusual 

circumstances and for the most cogent reasons”). There was ample 

evidence that Stormant was acting within the course and scope of 

his employment at the time of the crash. Therefore, we will not 

revisit the prior panel’s decision in Rodgers affirming the trial 

court’s holding. 

The question of law we decided in Rodgers was whether 

sovereign immunity applied to bar his suit versus the City. The 

trial court did not just deny the City’s motion for summary 

judgment on the issue and determine it was a jury question. 

Rather, the trial court held that Stormant was in the course and 

scope of his employment with the City at the time of the crash. It 

was this holding from the trial court that was locked in as law of 

the case following Rodgers. The trial court correctly declined to 

revisit the issue. 

Denial of a New Trial

The City sought a new trial on the ground that the jury’s 

verdict was against the manifest weight of the evidence. The

verdict found no negligence on the part of Rodgers and no 

negligence on the part of Blackwell. Thus, the verdict found 

Stormant completely at fault. The trial court denied the City’s 

motion for a new trial.

We review a ruling on a motion for a new trial under the abuse 

of discretion standard. See Heartland Express, Inc. of Iowa v. 

Farber, 230 So. 3d 146, 150 (Fla. 1st DCA 2017). “A trial court’s 

discretion, while broad, is not unbridled.” Ashcroft v. Calder Race 

Course, Inc., 492 So. 2d 1309, 1314 (Fla. 1986). 

As an appellate court, we do not reweigh the evidence. 

Rather, weighing the evidence is for the trial court. “In deciding 

whether the evidence manifestly weighs against the verdict, the 

trial court must examine all of the evidence—giving consideration 

to its weight and credibility.” Meyers v. Shontz, 251 So. 3d 992, 
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1000 (Fla. 2d DCA 2018) (citing Van v. Schmidt, 122 So. 3d 243, 

260 (Fla. 2013), and Smith v. Brown, 525 So. 2d 868, 869 (Fla. 

1988)); see also Smith v. Lyles, 364 So. 3d 1123, 1129 (Fla. 6th DCA 

2023) (citing Meyers for authority that a trial court must consider 

“all of the evidence” when deciding whether a verdict is contrary 

to the manifest weight of evidence). 

“A jury’s verdict is generally not against the manifest weight 

of the evidence if the record shows conflicting testimony from two 

or more witnesses.” Bachman v. Oliveros, 293 So. 3d 555, 560 (Fla. 

5th DCA 2020) (quoting Lindon v. Dalton Hotel Corp., 113 So. 3d 

985, 987 (Fla. 5th DCA 2013)); see also National Healthcorp Ltd. 

P’ship v. Cascio, 725 So. 2d 1190, 1194 (Fla. 2d DCA 1998). For a 

verdict to be against the manifest weight of the evidence to 

warrant a new trial, the evidence must be clear, obvious, and 

indisputable; where there is conflicting evidence, the weight to be 

given that evidence is within the province of the jury. See MiamiDade Cnty. v. Davis, 307 So. 3d 883, 890 (Fla. 3d DCA 2020); 

Harlan Bakeries, Inc. v. Snow, 884 So. 2d 336, 340 (Fla. 2d DCA 

2004). Here the evidence of comparative fault by both Rodgers and 

Blackwell was clear, obvious, and indisputable. As a result, the 

trial court abused its discretion in not granting a new trial based 

on that evidence. 

One of the witnesses called by the City was Christine Raach, 

Ph.D., an expert in biomechanics. She testified that within a 

reasonable degree of certainty the spinal injury Rodgers sustained 

was caused by the effect of his ejection from the truck and that 

Rodgers would not have been ejected had he been wearing a seat

belt. Had he been seat belted, despite the rollover Rodgers would 

have walked away from the accident with only minor injuries, 

Raach testified. There was no evidence disputing Raach’s 

testimony that Rodgers would not have been so severely injured 

had he been wearing his seat belt. Yet the jury found no negligence 

on the part of Rodgers. 

Similarly, the jury found no negligence on the part of 

Blackwell, the driver, even though the truck’s airbag data revealed 

that he was exceeding the posted speed limit by ten miles per hour 

at the time of the accident. Another witness for the City, accident 

reconstruction expert Andrew Irwin, testified that the excessive 
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speed contributed to Blackwell’s inability to avoid Stormant’s 

vehicle and thus contributed to the accident. No evidence was 

offered contradicting this testimony. While Blackwell testified 

that he was traveling at the same speed as other drivers, such is 

not testimony that he was not speeding. That is, Blackwell’s 

testimony does not conflict with Irwin’s. 

In denying the City’s motion for a new trial, the trial court 

found that “there was sufficient evidence presented to support the 

jury’s finding” that Stormant was a hundred percent liable for this 

accident. The trial court identified that evidence as being:

“Stormant’s testimony that he ran the stop sign and that he was 

responsible for the accident; Mr. Blackwell’s testimony that he was 

driving at the same rate of speed as traffic; and testimony that Mr. 

Blackwell was not injured and that he was also not wearing his

seatbelt.” 

These findings do not consider the undisputed testimony of 

Raach and Irwin. Further, while Stormant laudably 

acknowledged fault, such is hardly evidence that he was the sole 

cause of Rodgers’ catastrophic injury. Further still, as noted, 

traveling at the same rate of speed as others is not a denial of 

speeding. As for the lack of serious injury sustained by Blackwell, 

he was not seated on the side of the vehicle struck by Stormant

and was not in the back seat. Thus, Blackwell experienced the 

dynamics of the accident differently. As a result, we hold that the 

trial court did not “examine all of the evidence—giving 

consideration to its weight and credibility.” Meyers, 251 So. 3d at 

1000. Accordingly, the trial court abused its discretion in denying 

a new trial. 

Adding to the problem was the trial court’s refusal to give a 

curative instruction during closing arguments. Prior to closing 

arguments, counsel for Rodgers stated that he intended to argue 

to the jury that no law requires a backseat passenger to utilize a 

seat belt. The City opposed such an argument. The trial court 

agreed such an argument was inappropriate and ordered that

neither side was permitted to “mention the law regarding 

seatbelts.” The parties could only argue that the court’s jury

“instructions are all of the law that applies to the case.” During 

his closing, counsel for Rodgers addressed the testimony of Irwin 
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and the claim of the City that the excessive speed and failure to 

wear a seat belt were contributing factors. Counsel argued in part: 

Mr. Stormant says no, it’s on me. That’s their employee. 

And there’s the instruction, they’re [i.e., the City is] 

responsible, legally responsible for his actions. He came 

here under oath uncomfortably, feeling horrible about 

this but said, I can’t blame anybody else. It’s all on me.

The lawyers want to say something different. . . . Use 

your common sense when you apply these laws that 

you’re required to apply to this case. They want to blame 

him for his injuries. Oh, it’s all his fault. 

Well, let’s talk about what reasonably prudent people do.

We talked about it on Monday. We talked about some 

people getting into Ubers and they don’t wear them in the 

backseat. Some people in the backseat don’t put on 

seatbelts, period. That’s just what their experience is. 

You heard what Mr. Rodgers said in addition to saying, 

well, the windshield, didn’t want to go through the 

windshield. He also said it’s because he knows he’s 

required by law to wear a seatbelt in the front seat. Go 

read through these instructions. This is the law in the 

case. And find one thing that he violated, one thing that 

he violated by being in the backseat without it.

Given counsel’s implication that Rodgers did nothing wrong 

because he did not violate a statute, the City moved for a mistrial, 

and alternatively, sought a curative instruction at the end of

Rodgers’ closing argument. The trial court denied both. The jury, 

though, appears to have been confused about the legal significance 

of Rodgers’ failure to use a seat belt as evidenced by the questions 

submitted during its deliberations.1 This confusion likely 

1 This confusion is to some extent understandable. If 

Stormant had not run the stop sign, there would have been no 

accident. But comparative fault considers the allocation of fault 
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contributed to the jury’s failure to consider the unrebutted 

evidence about the consequences of Rodgers’ failure to wear a seat

belt and therefore to its verdict which was against the manifest 

weight of the evidence.

Remedy

At oral argument both parties assumed that if we reversed on 

the manifest weight of the evidence issue, we would order a new 

trial on all issues — liability as well as damages. Our remand can 

be more limited, however. 

In Botta v. Florida Power and Light Company, the court 

affirmed an order granting a new trial because the jury finding no 

comparative negligence on the part of the plaintiff Botta was 

against the manifest weight of the evidence. 197 So. 3d 1222, 1224 

(Fla. 4th DCA 2016). As here, there was no claim in Botta that 

finding the tortfeasor liable was against the manifest weight of the 

evidence. In Botta, the amount of damages awarded was not 

argued to be against the manifest weight of the evidence, while 

here any issue the City had with the amount of damages being 

against the manifest weight of the evidence was resolved with the 

order granting remittitur and Rodgers’ acceptance of a remitted 

judgment. 

So in Botta the court ordered “the new trial should be only on 

the issue found to have been erroneous,” which was the 

comparative negligence of Botta. Id. at 1226; see also Griefer v.

DiPietro, 625 So. 2d 1226, 1229 (Fla. 4th DCA 1993), as modified

on denial of reh’g (Sept. 8, 1993) (“[W]e now hold that a reversal 

for a new trial on damages is not appropriate where the error 

complained of affects only the issues of liability”). A similar order 

is appropriate here. See also Ridley v. Safety Kleen Corp., 693 So. 

2d 934, 945 (Fla. 1996), as clarified on reh’g (Mar. 27, 1997) 

(limiting retrial “to the issue of the alleged comparative negligence 

of [plaintiff] in failing to wear a seat belt, and if he is found to be 

for the damages a plaintiff suffers. See Ridley v. Safety Kleen 

Corp., 693 So. 2d 934, 944 (Fla. 1996). 
11

comparatively negligent, the issue of the percentage of fault 

attributable to [plaintiff]”).

As the court in Botta did, we adopt the procedure from 

Shufflebarger v. Galloway, 668 So. 2d 996 (Fla. 3d DCA 1995) (en 

banc), as well as the procedure from Ridley. On remand, the jury 

is to be instructed that Stormant was negligent and the City is 

liable for Stormant’s actions. Testimony and evidence can be 

received on the actions of Stormant, Rodgers, and Blackwell to 

allow the jury to apportion fault appropriately.2 

We, therefore, AFFIRM the trial court’s holding that law of the 

case precluded the City from reasserting the issue of sovereign 

immunity. We REVERSE and REMAND for a new trial solely as it 

relates to Stormant’s negligence, and Rodgers’ and Blackwell’s 

negligence, if any, recognizing that Stormant has already been 

found to be negligent and the amount of damages have already 

been determined. 

ROBERTS and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Stacy D. Blank, Bradford D. Kimbro, Joseph H. Varner, III, Anne 

L. Kelley of Holland & Knight LLP, Tampa, for Appellant.

Brian J. Lee of Morgan & Morgan, Jacksonville, for Appellee.

2 We are not directing that fault must be apportioned to 

Rodgers or Blackwell because we do not know what evidence will 

be presented at trial on remand.