Ricardo Sanchez, et al. v. Discount Rock & Sand, Inc.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14132
____________________
RICARDO SANCHEZ,
as Personal Representative of the Estate of
Teresa Sanchez Quetglas,
ELIA BONFANTE,
as Personal Representative of the Estate of
Ana Gaitan Diaz,
FRANCISCO CORTES,
as Personal Representative of the Estate of
Margarita Cortes-Pardo,
JULIO LOPEZ-BERMEJO ROSSELLO,
as Personal Representative of the Estate of
Maria Lopez-Bermejo Rossello,
Plaintiffs-Appellees,
versus
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2 Opinion of the Court 21-14132
DISCOUNT ROCK & SAND, INC.,
a Florida Corporation,
Defendant-Appellant,
CARLOS MANSO BLANCO,
individually,
Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:18-cv-10097-KMM
____________________
Before WILLIAM PRYOR , Chief Judge, and LUCK and MARCUS, Cir-
cuit Judges.
L UCK , Circuit Judge:
This case stems from a tragic car accident that claimed the
lives of four young women. The women’s estates sued Carlos
Manso Blanco, the driver who rear-ended their car, for negligence.
And the estates sued Blanco’s employer, Discount Rock & Sand,
Inc., for negligently entrusting the company’s truck to Blanco and
for vicarious liability for Blanco’s negligent driving. After the
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21-14132 Opinion of the Court 3
estates and Blanco settled, the district court ordered the estates to
file a stipulation of dismissal under Federal Rule of Civil Proce-
dure 41(a), which they did. Based on the stipulation, the district
court ordered the dismissal of the claim against Blanco. The re-
maining claims against Discount Rock went to trial, and the jury
found the company liable and awarded nearly $12 million in dam-
ages to the estates.
Discount Rock appeals the judgment, arguing that: (1) it was
entitled to judgment as a matter of law on the negligent entrust-
ment claim; (2) the district court erred by instructing the jury that
it could presume a rear-ending driver was negligent; and (3) the dis-
trict court abused its discretion by allowing the estates to show the
jury a demonstrative aid depicting the crash. After we issued a ju-
risdictional question, Discount Rock also moved to dismiss the ap-
peal. Discount Rock argues that the stipulation was ineffective to
dismiss the claim against Blanco because rule 41(a)(1)(A)(ii) re-
quires all parties who appeared in the action to sign the stipulation,
but Discount Rock didn’t sign it. Thus, the company argues, the
claim against Blanco was not dismissed and the district court’s
judgment was not final.
We first conclude that we have jurisdiction. Although the
stipulation did not comply with rule 41(a)(1)(A)(ii), the district
court’s order dismissing the claim against Blanco satisfied
rule 41(a)(2)—which allows a district court to dismiss an action by
court order at a plaintiff’s request. And on the merits, we conclude
that: (1) Discount Rock was not entitled to judgment as a matter
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4 Opinion of the Court 21-14132
of law on the negligent entrustment claim; (2) any error in instruct-
ing the jury on the rear-end-collision presumption was harmless;
and (3) there was no reversible error in publishing the demonstra-
tive aid. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In March 2018, four Spanish citizens vacationing in the Flor-
ida Keys were killed in an automobile accident. The four women
were traveling northbound on U.S. Route 1 (the Overseas High-
way) and stopped near mile marker 79 to turn left into a scenic
viewing area. Two vehicles, driven by Cheyenne Del Okeyes and
Eduardo Ponce, passed the women’s Nissan Rogue sport utility ve-
hicle on the righthand shoulder. But a third vehicle—a truck out-
fitted with a large tank holding water and sewage and hauling a
port-a-potty—slammed into the Nissan. The truck, which was
owned by Discount Rock and driven by its employee, Blanco, pro-
pelled the Nissan into oncoming traffic, into the path of a recrea-
tional vehicle driven by Daniel Pinkerton. All four women died at
the scene.
The women’s estates sued Blanco for negligence and Dis-
count Rock for negligent entrustment and for vicarious liability for
Blanco’s negligence. The estates sought compensatory and puni-
tive damages.
When Blanco and the estates settled, the district court “di-
rected [them] to file a stipulation of dismissal of all claims signed by
all [p]arties to the settlement pursuant to [r]ule 41(a).” So they filed
a “Stipulation for Voluntary Dismissal,” signed by both Blanco’s
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21-14132 Opinion of the Court 5
and the estates’ counsel, that stipulated, “pursuant to Federal Rule
of Civil Procedure 41(a)(1)(A), . . . to the voluntary dismissal of
th[e] action only against [Blanco].” The district court then entered
an order citing rule 41(a)(1)(A)(ii) before “adjudg[ing] that the [es-
tates’] cause [be] hereby dismissed as to [Blanco].” Because the par-
ties neither requested dismissal with prejudice nor indicated that
the estates had previously dismissed their claim against Blanco, the
district court ordered the dismissal to be without prejudice under
rule 41(a)(1)(B). The district court also “retain[ed] jurisdiction to
enforce the settlement agreement.”
The remaining claims against Discount Rock went to trial.
Discount Rock framed the accident as “unavoidable” and explained
in its opening that it “d[id] not blame anyone in the Nissan for do-
ing something wrong.” The estates, on the other hand, told the
jury that Blanco was an inexperienced and checkered driver, was
undertrained to safely handle a truck of that size and weight, and
was speeding, following too closely, and distracted—looking away
from the road—right before the accident.
The jury heard from Discount Rock’s owner, who admitted
he didn’t know about Blanco’s past driving violations—for speed-
ing, running a stop sign, and driving with an expired tag—and
wouldn’t have hired him had he known. The owner described hav-
ing the dealership modify the truck to carry an aluminum tank with
capacity for 300 gallons of water and 800 gallons of sewage (from
cleaning port-a-potties)—for a combined 20,000-pound weight
when full. But he didn’t test the truck’s braking or maneuverability
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6 Opinion of the Court 21-14132
with the tank installed because he believed the dealer did—and be-
cause, he said, the “heavy duty” truck was designed to handle the
same with or without the added weight. Nor did the owner require
Blanco to complete any safety training with the truck (other than
shadowing another driver for a period). The day of the accident,
the truck was nearly full and weighed 19,500 pounds.
The jury also heard from Pinkerton, the recreational vehi-
cle’s driver. Pinkerton said he saw the women’s Nissan slow to a
stop with its turn signal on, at which point a black car swerved
around it. Pinkerton then saw Blanco with his head down, “look-
ing down with his hands down here,” as the Discount Rock truck
approached the Nissan “at a pretty good rate of speed.” The jury
saw a bodycam video in which Pinkerton informed a law enforce-
ment officer at the scene that the “tanker truck” driver “wasn’t pay-
ing attention.”
Blanco testified too. He acknowledged his three prior traffic
violations. He also confirmed he’d had neither a road test nor train-
ing for driving the truck, other than riding with the outgoing driver
for a week and a half. But Blanco agreed that the truck “felt differ-
ent than [Discount Rock’s] old one,” which explained why he was
speeding when the accident happened. And he testified that he did
“everything in [his] power” to brake and maneuver to the right
once he saw the Nissan stopped ahead—but he “was being
dragged,” he said, and couldn’t stop “because maybe [he] had too
much weight from the water, plus the [port-a-potty]” that he was
hauling. The tank “sort of influenced in dragging [him]” and
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21-14132 Opinion of the Court 7
preventing him from stopping, he testified, “because it’s very
heavy, it weighs a lot.”
Florida Highway Patrol Corporal Luis Perez likewise ex-
plained that, “on the road, it look[ed] like [Blanco] actually tried to
go to the right” but couldn’t avoid the collision “because [the truck]
had too much . . . a lot of water, I believe it was a full tank of water
in the back, all that inertia go[ing] forward when [Blanco] tried to
go to the right.” Perez also saw evidence that, besides swerving,
Blanco tried to brake “[j]ust right before” the collision. And Perez
confirmed that the Nissan was stopped for a legal left turn at the
time of the accident.
The estates also presented the testimony of an accident re-
construction expert, William Fischer. Before Fischer was called,
Discount Rock objected to his planned use of a PowerPoint
demonstrative aid on two grounds. First, although Discount Rock
had asked for the demonstrative aid ten days before trial, the estates
disclosed the eighty-four-slide PowerPoint deck at 11:45 p.m. after
the first day of trial, “not pursuant to th[e district c]ourt’s dead-
lines.” The estates’ untimely disclosure, Discount Rock contended,
hampered its defense. Its cross-examination “outline would look
very different,” it argued, had it seen the compilation—these slides,
in this specific order—earlier, and perhaps it would’ve hired a com-
peting expert. The district court initially described the estates’ con-
duct as an “[eleven]th-hour ambush.” But after the district court
directed the parties to confer and zero in on Discount Rock’s spe-
cific objections, Discount Rock conceded that all but four slides had
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8 Opinion of the Court 21-14132
previously been disclosed.1 After pressing for specifics—and ob-
serving that Discount Rock was simply “throw[ing] the whole
bowl of spaghetti on the wall [to] see if any of it sticks”—the district
court overruled Discount Rock’s timeliness objection.
Second, Discount Rock objected to a “misleading” and “con-
fusing” accident-reconstruction animation in the PowerPoint—“a
gross mischaracterization of the facts” that omitted the two vehi-
cles that passed the women’s Nissan before Blanco crashed into it.
But the district court overruled this objection too, for three rea-
sons. First, the district court noted that “there ha[d] been some
different testimony with respect to the number of cars that may or
may not have gone around.” Second, the district court offered to
“remind the jury” that “these demonstrative aids are not evidence.”
Third, Discount Rock could choose to address the omission during
cross-examination. For these reasons, the district court concluded
that the animation “would still be more helpful than not for the
jury.”
During Fischer’s testimony, the district court preemptively
instructed the jury before publishing the demonstrative aid:
1
Discount Rock objected that, even if presenting previously disclosed mate-
rial, “almost every single” slide had been changed since Fischer’s deposition.
But after the estates pointed out that the bulk of the objected-to changes were
benign—like an added directional arrow, a complaint the district court called
“laughable”—Discount Rock conceded that it had no objection “to any of the
slides where all they’ve done is add[] the directional.”
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21-14132 Opinion of the Court 9
Folks, you’re going to see what is a demonstrative aid.
It’s not evidence in the case. It’s presumably based on
the witness’s testimony based on the evidence that he
has reviewed in the case. So just be careful that if—
this document, as I said, is not going to be admitted
as evidence—but just be careful that if you see any-
thing on the demonstrative aid that is different than
your recollection of what the evidence is in the case,
it’s the evidence that controls. So, if you see anything
different—I mean, I’m not suggesting that there
would be anything different—but if you do, just be
careful and just make sure you understand it’s not ev-
idence in the case. It’s a demonstrative aid, they’re
intended to help you, but if you see any difference, be
guided by the evidence.
Fischer opined: (1) that Blanco was speeding before the crash;
(2) that he “only steered prior to impact and did not brake”; and
(3) that the women’s Nissan—which had been stopped or moving
slowly for “at least five seconds” before impact—would’ve been
visible to “an attentive driver . . . for a sufficient amount of time to
avoid actually impacting” it. Fischer also explained that the scenic
viewing area into which the women were turning was paved, with
no signs prohibiting a left turn—in fact, “all the pavement markings
on the roadway were dashed and such that would allow a left
turn”—and no signs prohibiting parking. On the day he inspected
the area, Fischer said, several cars turned left into the area to stop,
take photos, and enjoy the view.
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Fischer then played the accident-reconstruction animation
to “show the jurors the two impacts”: the animation depicted a
stationary Nissan, angled slightly leftward in the direction of a
paved turn-off, a recreational vehicle approaching from the oppo-
site direction, and finally a tanker truck barreling into and pushing
the Nissan into a collision with the recreational vehicle. Afterward,
the estates asked him:
Now, this animation that we’ve just seen, I take it,
your focus is on the three vehicles that were involved
in some sort of a collision in the crash scene . . . . You
don’t show the vehicles, whether it was two, as some
witnesses testified, or three vehicles, as the Florida
Highway Patrolman testified, that passed without in-
cident—passed the [women’s] vehicle without inci-
dent; those aren’t shown there, are they?
Fischer confirmed: “No, they’re not. This is, essentially, just to
show—give someone an understanding of how all these vehicles
came together.”
Still, Fischer expressly addressed the two passing vehicles.
Before playing the animation, he told the jury that “at least two
cars also traveling north behind the [Nissan] maneuvered around
and to the right of the stopped [Nissan].” He displayed and dis-
cussed a slide with a still-image from the animation depicting the
“[a]rea of other vehicles traveling around [the] stopped [Nissan]” (a
superimposed dotted, “curved line that originates in the north-
bound lane from behind the stopped vehicle, and then it curves
around and then, ultimately, re-enters the northbound lane”). And
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21-14132 Opinion of the Court 11
he explained that he reviewed Del Okeyes’s and Ponce’s Florida
Highway Patrol statements in preparing his expert report.
On cross-examination, Fischer was again asked about the
missing vehicles in the animation. He acknowledged that “[t]he
animation that [he] created left out two of the cars that were part
of the sequence of events leading up to th[e] accident.” But he dis-
agreed with Discount Rock’s characterization that the omitted ve-
hicles had “direct involvement” with the women’s Nissan and reit-
erated that “th[e] animation was strictly to show the interaction
between the [Discount Rock truck’s] impact into the rear of the
Nissan and then the impact of the Nissan into the front of the [rec-
reational vehicle].”
Finally, the jury heard from the drivers of both vehicles that
passed the women’s Nissan before the collision. Del Okeyes drove
the first vehicle; she, like Pinkerton, testified that the Nissan grad-
ually slowed to a stop with its blinker on. Del Okeyes told the jury
that she slowed down and was “able to pass on the right without
any issue” but also would’ve had enough time to stop behind the
Nissan. After passing the Nissan, she saw a black car behind her
pass too. She then saw “[a] big truck was coming up on the [Nissan]
pretty fast, and it looked like he tried to avoid but didn’t have
enough time to stop, which he slammed into the [Nissan], which
pushed them into oncoming traffic” and into the recreational vehi-
cle.
Ponce—the driver of the black car that passed second—tes-
tified that he didn’t see the stopped Nissan until Del Okeyes passed
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12 Opinion of the Court 21-14132
it. He didn’t have time to brake or use his turn signal, he said; in-
stead, he “almost crashed” into the Nissan before swerving around
it. Ponce thought the Nissan had stopped quickly. But he admitted
he didn’t know how long it’d been stopped—and Fischer testified
that Ponce’s testimony that the Nissan stopped abruptly was incon-
sistent both with data from the Nissan’s black box and with Pink-
erton’s and Del Okeyes’s statements. After passing the Nissan,
Ponce saw in his rearview mirror “a car that was coming behind
[him]”—it was “really big, the truck”—crash into the Nissan “really
bad.”
After the estates rested, Discount Rock moved for judgment
as a matter of law on the estates’ punitive damages claim, which
the district court granted. Discount Rock then moved for judg-
ment as a matter of law on the estates’ negligent entrustment
claim. In doing so, Discount Rock stipulated that “Blanco was act-
ing within the course and scope of his employment at the time of
th[e] accident”—in which case, it argued, with the punitive dam-
ages claim dismissed, the estates couldn’t hold Discount Rock both
directly and vicariously liable. The district court, “satisfied that
[there was] sufficient evidence . . . on both claims[] to allow them
to go to the jury,” denied Discount Rock’s motion.
At the charge conference, Discount Rock objected to a jury
instruction on Florida’s presumption of negligence when a driver
rear-ends another vehicle. Discount Rock asserted that it’s “a dis-
solving presumption [and,] once evidence has been introduced that
it was an unavoidable accident or that there is [an]other
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21-14132 Opinion of the Court 13
explanation, the presumption dissolves and it becomes a jury ques-
tion.” The district court overruled Discount Rock’s objection and
instructed the jury: “In a rear-end collision[,] a rebuttable presump-
tion of negligence attaches to the driver of the rear vehicle. The
presumption can be rebutted if the rear-end driver puts forth evi-
dence establishing the lead driver’s negligence contributed to the
accident.” Discount Rock also proposed and agreed to a verdict
form giving the jury three options for allocating liability for the col-
lision: Discount Rock, Blanco, and Pinkerton.
In closing, Discount Rock again asserted that the accident
was unavoidable—the stretch of highway was unsafe, two cars had
to swerve around the women’s Nissan because they didn’t have
time to stop, and Blanco “was unable to avoid the collision” be-
cause inertia caused by “the weight of the truck” prevented him
from swerving—and that Discount Rock did nothing wrong in en-
trusting the truck to Blanco in light of its safety policies. Discount
Rock challenged Fischer’s credibility because the PowerPoint ani-
mation omitted the cars that passed the women’s Nissan. And Dis-
count Rock argued that Pinkerton, Del Okeyes, and Ponce were all
partially responsible for the accident.
The jury returned a verdict for the estates, awarding dam-
ages totaling nearly $12 million. The jury found Discount Rock
both vicariously liable for Blanco’s negligence (the jury appor-
tioned seventy-five percent fault to him) and twenty-five percent
responsible due to its own negligence. The district court entered
judgment on the jury’s verdict against Discount Rock.
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14 Opinion of the Court 21-14132
Discount Rock then moved for judgment as a matter of law,
for a new trial, or for remittitur. It argued that the district court
should’ve entered judgment as a matter of law in its favor on the
estates’ negligent entrustment claim, shouldn’t have instructed the
jury on presuming negligence, and abused its discretion in allowing
publication of Fischer’s demonstrative aid. The district court de-
nied Discount Rock’s motion. This is Discount Rock’s appeal.
JURISDICTION
We begin, as we must, by assuring ourselves of our jurisdic-
tion. Cavalieri v. Avior Airlines C.A., 25 F.4th 843, 848 (11th Cir.
2022) (“A federal court not only has the power but also the obliga-
tion at any time to inquire into jurisdiction whenever the possibil-
ity that jurisdiction does not exist arises.” (citation omitted)). We
issued a jurisdictional question asking the parties to address
whether the rule 41 stipulation voluntarily dismissing Blanco “was
effective, given that it appeared to be signed only by counsel for
the [estates] and counsel for Blanco and did not appear to be signed
by counsel for Discount Rock.”
We asked that question because, if the stipulation was inef-
fective to dismiss Blanco, then the estates’ claim against him re-
mains pending. And if the estates’ claim against Blanco is still pend-
ing, then the district court’s order entering judgment against Dis-
count Rock isn’t final because it didn’t dispose of all claims against
all parties. “Ordinarily, a final judgment resolves conclusively the
substance of all claims, rights, and liabilities of all parties to an ac-
tion.” Collar v. Abalux, Inc., 895 F.3d 1278, 1283 (11th Cir. 2018)
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21-14132 Opinion of the Court 15
(emphasis added) (citing Fed. R. Civ. P. 54(b)); see also 28 U.S.C.
§ 1291 (conferring “jurisdiction of appeals from all [district courts’]
final decisions”).
In response to our jurisdictional question, the estates urge
us to follow the Fifth Circuit in National City Golf Finance v. Scott,
899 F.3d 412 (5th Cir. 2018), and conclude that “only the dismissed
defendant need sign the [rule 41] stipulation,” id. at 415 n.3. And if
not, the estates argue, we should treat Blanco as having been vol-
untarily dismissed by court order under rule 41(a)(2). Finally, the
estates address a point we didn’t raise: whether the stipulation was
effective despite not dismissing the estates’ entire action. On that
issue, the estates argue that we should apply our holding in Plains
Growers, Inc. ex rel. Florists’ Mutual Insurance Co. v. Ickes-Braun Glass-
houses, Inc.—that a rule 41(a)(1)(A)(i) notice can dismiss one de-
fendant while leaving “the action against another defendant” pend-
ing, 474 F.2d 250, 253 (5th Cir. 1973)—to the rule 41(a)(1)(A)(ii)
stipulation here.2
Discount Rock, for its part, argues that a rule 41(a)(1)(A)(ii)
stipulation “must be signed by all parties who have appeared in the
action,” not just the parties that settled. Discount Rock also argues
that we shouldn’t treat the district court’s order as a rule 41(a)(2)
dismissal for three reasons: (1) because the estates never moved
for an order of dismissal (as to which Discount Rock would’ve had
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to October 1, 1981.
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16 Opinion of the Court 21-14132
an “opportunity to be heard”); (2) because the order “[wa]s devoid
of any analysis that Blanco was being dropped ‘on just terms’”; and
(3) because Discount Rock was in fact prejudiced by Blanco’s dis-
missal. Finally, Discount Rock asserts that Plains Growers “ex-
pressly limited its ruling” to the rule 41(a)(1)(A)(i) notice context.
Extending Plains Growers’ holding to permit dismissal of a single
defendant—rather than a plaintiff’s “entire action”—via rule 41’s
other avenues, Discount Rock says, would conflict with the rule’s
plain language, render Federal Rule of Civil Procedure 21 superflu-
ous, and contradict the 1946 advisory committee note to rule 41
“reflect[ing] an intention to ‘prevent[] unlimited dismissal.’”
Rule 41(a) sets out three avenues for voluntary dismissal of
“an action”: (1) a rule 41(a)(1)(A)(i) notice filed “before the oppos-
ing party serves either an answer or a motion for summary judg-
ment”; (2) a rule 41(a)(1)(A)(ii) stipulation “signed by all parties
who have appeared”; or (3) a rule 41(a)(2) court order dismissing
the action “at the plaintiff’s request” and “on terms that the court
considers proper.” Fed. R. Civ. P. 41(a). Although the estates’ stip-
ulation was ineffective under rule 41(a)(1)(A)(ii) because Discount
Rock didn’t sign it,3 we agree with them that the district court’s
order satisfied rule 41(a)(2)’s requirements and so was effective to
dismiss Blanco. Here’s why.
3
After the parties briefed and argued this appeal, we held in City of Jacksonville
v. Jacksonville Hospitality Holdings, L.P. that a rule 41(a)(1)(A)(ii) stipulation re-
quires the signatures of “all parties who have appeared in the lawsuit,” not just
“all parties involved in the dismissal.” 82 F.4th 1031, 1034 (11th Cir. 2023).
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21-14132 Opinion of the Court 17
First, the stipulation—which alerted the district court that
the estates sought to dismiss Blanco—sufficed as “the plaintiff[s’]
request” for a court-ordered voluntary dismissal. Rule 41(a)(2), by
its plain language, doesn’t require a motion. Cf. Pontenberg v. Bos.
Sci. Corp., 252 F.3d 1253, 1256 n.1 (11th Cir. 2001) (“[A] district
court need not await a motion from a plaintiff to permit voluntary
dismissal and may act sua sponte to dismiss under [r]ule 41(a)(2).”);
see also Morris v. City of Hobart, 39 F.3d 1105, 1109–10 (10th Cir.
1994) (“Rule 41(a)(2) does not require that the plaintiff’s request for
dismissal take any specific form; it requires only that the court ap-
prove such a request for dismissal.”). And, several times, we’ve
approved dismissal orders that treated rule 41(a)(1)(A) notices and
stipulations as requests for a rule 41(a)(2) court order. See Ponten-
berg, 252 F.3d at 1255–56 & n.1 (notice); Serendipity at Sea, LLC v.
Underwriters at Lloyd’s of London Subscribing to Pol’y No. 187581, 56
F.4th 1280, 1284 (11th Cir. 2023) (stipulation); Druhan v. Am. Mut.
Life, 166 F.3d 1324, 1325 n.3 (11th Cir. 1999) (stipulation); see also
Plains Growers, 474 F.2d at 253 (observing, in dicta, that “[w]here
notice of dismissal under [r]ule 41(a)(1) fails, the notice may be con-
sidered a motion under [r]ule 41(a)(2) and the court may order the
dismissal”).
Second, the district court’s order complied with the require-
ment of rule 41(a)(2) in “adjudg[ing] that the [estates’] cause
[wa]s . . . dismissed as to” Blanco because it set forth the terms of
the dismissal. The district court ordered dismissal without preju-
dice because the parties neither requested otherwise nor “informed
the [c]ourt whether [the estates] previously dismissed any federal
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18 Opinion of the Court 21-14132
or state court action based on or including the same claim.” And
the district court “retain[ed] jurisdiction to enforce the settlement
agreement” between the estates and Blanco. Both of these are
“terms that the [district] court consider[ed] proper,” which is all
rule 41(a)(2) requires. Fed. R. Civ. P. 41(a)(2).
Discount Rock’s arguments to the contrary are unpersua-
sive. First, it argues that the district court’s order was “devoid of
any analysis” that the terms of Blanco’s dismissal were proper. But
on its face, the order shows that the district court analyzed whether
the dismissal’s terms were proper. The order expressly states the
district court “consider[ed] . . . the [s]tipulation[ and] the pertinent
portions of the record.” Then, only after “being . . . fully advised
in the premises,” the district court ordered Blanco’s dismissal and
specified the terms.
Second, Discount Rock argues that even if we treat the dis-
trict court’s order as a dismissal order under rule 41(a)(2), it still did
not dismiss an “action” because it didn’t dismiss the entire case.
But in Plains Growers, where we addressed a rule 41(a)(1)(A)(i) no-
tice, we held that a plaintiff can dismiss one defendant under
rule 41(a) “even though the action against another defendant
would remain pending.” 474 F.2d at 253. That is what happened
here—the district court’s order dismissed the action as to Blanco,
“even though the action against [Discount Rock] remain[ed] pend-
ing.” Id.
Discount Rock is mistaken that Plains Growers “limited its
ruling” to rule 41(a)(1)(A)(i) and thus “action” should mean the
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21-14132 Opinion of the Court 19
entire case for rule 41(a)(2) dismissal orders. Rules 41(a)(1)(A)(i),
(a)(1)(A)(ii), and (a)(2) all use the term “action.” Although we de-
cided Plains Growers in the context of a rule 41(a)(1)(A)(i) notice of
dismissal, our holding hinged on interpreting the word “action” as
used throughout rule 41(a)—not on any language in the dismissal-
by-notice subrule, specifically. See id. at 254–55 (rejecting the argu-
ment that “‘action’ in [rule 41(a)] . . . denotes the entire contro-
versy” and adopting “the ‘better view’ . . . that a [r]ule 41(a) notice
or motion can be effected against less than all of the defendants”).
Indeed, we found
little merit in an argument that the [district] court
could not dismiss the action as to less than all defend-
ants upon motion, and yet there is nothing in the
[r]ule to indicate an intent to make the word “action”
mean “all” in 41(a)(1) and mean less than “all” in
41(a)(2).
Id. at 254; see also Fed. R. Civ. P. 41(a)(1)(A) (setting out ways a
“plaintiff may dismiss an action without a court order” (emphasis
added)); Fed. R. Civ. P. 41(a)(2) (authorizing dismissal of “an ac-
tion” by court order (emphasis added)). And in Oswalt v. Scripto,
Inc., which involved a filing dismissing one of several defendants
that we found “tantamount to a [rule 41(a)(1)(A)(ii)] stipulation,”
we recognized that Plains Growers “rejected” the view “that ‘action’
in [r]ule 41 means the entire controversy.” 616 F.2d 191, 194–95
(5th Cir. 1980).
We reject Discount Rock’s invitation to give “action” a dif-
ferent meaning for rule 41(a)(2) than it has for rule 41(a)(1)(A)(i)
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20 Opinion of the Court 21-14132
(Plains Growers) or rule 41(a)(1)(A)(ii) (Oswalt). We generally “pre-
sume that ‘words or phrases bear the same meaning throughout a
text.’” Hylton v. U.S. Att’y Gen., 992 F.3d 1154, 1159 (11th Cir. 2021)
(cleaned up) (quoting Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts § 25, at 170, 173 (2012)). “It
would be odd if, in two consecutive subsections of [rule 41(a)], . . .
the same words were read to mean one thing in the first subsection
but another in the second.” Id. Discount Rock points us to nothing
from rule 41(a)’s context rebutting the general presumption that
the same word in the same rule means the same thing. See id. (“All
else being equal, we prefer a reading of the second [subsection] that
coheres with binding precedent as to the first.”).4
The district court’s order dismissing Blanco but leaving the
estates’ claims against Discount Rock pending satisfied
rule 41(a)(2)’s requirements and so was effective to dismiss Blanco.
And with Blanco dismissed, the judgment entered against Discount
4 Discount Rock directs our attention, by notice of supplemental authority, to
Rosell v. VMSB, LLC, 67 F.4th 1141 (11th Cir. 2023), which it says “supports its
position that Blanco’s ‘voluntary’ dismissal pursuant to [r]ule 41 was proce-
durally ineffective.” We did dismiss the appeal in Rosell for lack of jurisdiction
because “the parties . . . attempted to use [r]ule 41(a) to dismiss a single count
and not an entire lawsuit.” Id. at 1143. But Discount Rock overlooks Rosell’s
footnote two, which “recognized that [r]ule 41(a) allows a district court to dis-
miss all claims against a particular defendant,” an “exception (if it can be called
that) [that] is compatible with the rule’s text because[,] in a multi-defendant
lawsuit, an ‘action’ can refer to all the claims against one party.” Id. at 1144
n.2 (citations omitted).
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21-14132 Opinion of the Court 21
Rock resolved all claims against all remaining parties—making it
final. We have jurisdiction.
DISCUSSION
Turning to the merits, Discount Rock raises three issues on
appeal. First, Discount Rock asserts that the district court erred in
denying its motions for judgment as a matter of law on the estates’
negligent entrustment claim. Second, Discount Rock argues that
the district court erred in instructing the jury on Florida’s rebutta-
ble presumption that a rear-ending driver is negligent. Third, Dis-
count Rock contends that the district court abused its discretion in
allowing the estates to publish an untimely and misleading demon-
strative aid.
Negligent Entrustment
Discount Rock argues, first, that the district court erred in
denying its motions for judgment as a matter of law as to the es-
tates’ negligent entrustment claim. It contends that, under long-
standing Florida precedent, a plaintiff can’t pursue both vicarious
liability and negligent entrustment claims against an employer
once the employer has admitted that the allegedly negligent em-
ployee was acting in the course and scope of his employment.5
5
We review de novo a district court’s ruling on a motion for judgment as a
matter of law. Mamani v. Sánchez Bustamante, 968 F.3d 1216, 1230 (11th Cir.
2020). “Our sole consideration is whether the evidence sufficiently supports
the verdict,” viewing all the evidence and drawing all reasonable inferences in
the nonmovant’s favor. Id. (citations omitted).
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22 Opinion of the Court 21-14132
Under Florida law, an employer “may be held liable for in-
jury to a third party caused by” its employee’s negligent conduct
“while acting in the scope of his authority.” Mallory v. O’Neil, 69
So. 2d 313, 314 (Fla. 1954). Generally, where “a plaintiff alleges and
a defendant admits that the alleged torts took place during the
course and scope of employment, employer liability can only be
pursued on the basis of [vicarious liability] and not on the basis that
the employer was negligent.” Delaurentos v. Peguero, 47 So. 3d 879,
882 (Fla. Dist. Ct. App. 2010) (citing Mallory, 69 So. 2d at 315).
But two exceptions to the general rule apply where a direct-
liability theory “would impose additional liability” on the employer
beyond vicarious liability for its employee’s negligence. Clooney v.
Geeting, 352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977). First, an
employer can be separately liable—in addition to vicarious liabil-
ity—where there’s a pending punitive damages claim. Id. Second,
an employer may be separately liable where the alleged direct lia-
bility takes the form of negligent entrustment. See id.
The Clooney court gave the mine-run example of the second
exception. An employer will be separately liable for negligent en-
trustment if the “owner or authorized custodian of a motor vehicle
. . . knows that the vehicle has defective brakes,” it allows an em-
ployee “who is not aware of this dangerous condition to use [the
vehicle], and because of the bad brakes an accident occurs.” Id. “If
the driver were found not to be negligent”—because he didn’t
know about the defective brakes—the employer “could not be held
vicariously liable. So the means of imposing liability on the
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21-14132 Opinion of the Court 23
[employer] would be through [its] own negligence of lending the
car with bad brakes.” Id.
Here, the district court granted Discount Rock’s motion for
judgment as a matter of law as to the estates’ punitive damages
claim so that claim couldn’t support sending both the estates’ direct
and vicarious liability theories to the jury. But the estates also al-
leged a negligent entrustment claim and provided evidence that
Discount Rock knew of its truck’s dangerous condition.
The jury heard evidence that Discount Rock’s owner had
the truck Blanco was driving modified to carry an 1,100-gallon alu-
minum tank. The owner testified that, with a full tank, the truck’s
combined weight was 20,000 pounds—and Fischer testified that
the truck was nearly full the day of the accident, weighing around
19,500 pounds. The jury also heard evidence that Discount Rock’s
owner never tested the truck’s brakes or maneuverability after the
tank was installed—believing that the dealership tested it and that
the “heavy duty” truck would handle the same as modified. And
Discount Rock’s owner admitted that he didn’t train Blanco to op-
erate the modified truck, instead only having Blanco shadow the
outgoing driver for a week or two.
At the same time, Blanco testified that the modified truck
“felt different than [Discount Rock’s] old one.” He told the jury
that he did “everything in [his] power” to brake and maneuver to
the right but “was being dragged” and couldn’t stop “because
maybe [he] had too much weight from the water, plus the [port-a-
potty] that [he] was [hauling].” Blanco also testified that the
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24 Opinion of the Court 21-14132
aluminum tank “sort of influenced in dragging [him]” and prevent-
ing him from stopping “because it’s very heavy, it weighs a lot.”
Florida Highway Patrol Corporal Perez echoed this testimony, ex-
plaining that the roadway evidence suggested that Blanco “actually
tried to go to the right” to bypass the Nissan but couldn’t “because
[the truck] had too much . . . a lot of water, I believe it was a full
tank of water in the back, all that inertia go[ing] forward when
[Blanco] tried to go to the right.”
Discount Rock seized on this explanation in its closing argu-
ment. It told the jury that the accident was “unavoidable” partly
because Blanco “was unable to avoid the collision” when inertia
caused by “the weight of the truck” prevented him from swerving
around the Nissan. Indeed, Discount Rock specifically hearkened
back to Blanco’s testimony about “being pulled,” and to Perez’s
testimony that “inertia from the water in the tank dragged the
truck away.” Discount Rock urged the jury not to hold it or Blanco
responsible—pointing instead to Pinkerton’s, Del Okeyes’s, and
Ponce’s responsibility for the accident.
As Discount Rock’s closing argument demonstrates, this
case is essentially the paradigm example of negligent entrustment.
There was sufficient evidence for the jury to find, as Clooney envi-
sioned, that Discount Rock “kn[ew] that the vehicle ha[d]” a dan-
gerous condition yet “allow[ed] one who [wa]s not aware of this
dangerous condition to use it,” and an accident occurred because
of that condition. See Clooney, 352 So. 2d at 1220. Because Discount
Rock could be separately liable for entrusting the truck to Blanco
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21-14132 Opinion of the Court 25
in addition to being vicariously liable for Blanco’s negligence, the
district court did not err in denying Discount Rock’s motion for
judgment as a matter of law on the negligent entrustment claim.
Rebuttable Presumption of Negligence
Next, Discount Rock argues that the district court erred in
instructing the jury on Florida’s presumption that a driver who
rear-ends another vehicle was negligent. According to Discount
Rock, the “presumption dissolves when there is evidence that fairly
and reasonably tends to show that the presumption of negligence
is misplaced”—which it says it presented here. And the district
court’s error wasn’t harmless, Discount Rock argues, “because the
instruction essentially guaranteed a verdict for” the estates.6
In Florida, it’s well settled that a “rebuttable presumption of
negligence . . . attaches to the rear driver in a rear-end collision.”
Clampitt v. D.J. Spencer Sales, 786 So. 2d 570, 572 (Fla. 2001); accord,
e.g., Gulle v. Boggs, 174 So. 2d 26, 28 (Fla. 1965); Birge v. Charron, 107
So. 3d 350, 353 (Fla. 2012). The question here is whether it was
error to instruct the jury on the presumption.
6 “We review jury instructions de novo to determine whether they misstate
the law or mislead the jury to the prejudice of the objecting party but give the
district court wide discretion as to the style and wording employed.” Bhogaita
v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014)
(cleaned up). We will reverse “where we are left with a substantial and ine-
radicable doubt as to whether the district court properly guided the jury.” Id.
(cleaned up).
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26 Opinion of the Court 21-14132
Florida recognizes two types of rebuttable presumptions:
those “affecting the burden of producing evidence” (often called
vanishing presumptions) and those “affecting the burden of proof.”
Fla. Stat. § 90.302 (emphases added); accord Universal Ins. Co. of
N. Am. v. Warfel, 82 So. 3d 47, 53–54 (Fla. 2012). Vanishing pre-
sumptions are “established primarily to facilitate the determination
of the particular action in which the presumption is applied”; pre-
sumptions affecting the burden of proof serve “to implement pub-
lic policy.” Fla. Stat. §§ 90.303–.304. Under either type, “a directed
verdict on a presumed fact” is appropriate “if such fact goes unre-
butted.” Warfel, 82 So. 3d at 52.
“The fundamental difference between the two” is what hap-
pens “in the face of rebutting evidence: the former requires the
presumption to vanish, whereas the latter still presents the pre-
sumption to the trier of fact to decide if the contradicting evidence
overcomes the presumption.” Id. So a jury never hears about a
vanishing presumption: either the district court directs a verdict
on the issue or, if rebutting evidence is produced, then the pre-
sumption “drop[s] out of the case” and “the issue is determined on
the evidence just as though no presumption had ever existed.” Id.
at 51–52 (citations omitted); accord Pub. Health Tr. of Dade Cnty. v.
Valcin, 507 So. 2d 596, 600 (Fla. 1987) (explaining that, once a van-
ishing presumption is rebutted, issues are resolved “as in a typical
case,” and “[t]he jury is never told of the presumption”).
Florida’s presumption that a rear-ending driver was negli-
gent is a vanishing presumption—meaning a jury shouldn’t hear
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21-14132 Opinion of the Court 27
about it. Birge, 107 So. 3d at 359 n.16; Gulle, 174 So. 2d at 28–29.
But the district court here instructed the jury: “In a rear-end colli-
sion, a rebuttable presumption of negligence attaches to the driver
of the rear vehicle. The presumption can be rebutted if the rear-
end driver puts forth evidence establishing the lead driver’s negli-
gence contributed to the accident.” Thus, we agree with Discount
Rock that the district court erred by instructing the jury on the pre-
sumption over Discount Rock’s objection. See, e.g., DiGregorio v.
Indus. Supply Corp. of Orlando, 438 F.2d 303, 305 (5th Cir. 1971)
(“[T]his presumption is not the proper matter of a charge to the
jury under any circumstances.”); Baker v. Deeks, 176 So. 2d 108, 109
(Fla. Dist. Ct. App. 1965) (“[I]t is improper to instruct the jury on
the presumption of negligence.”).
Still, we conclude that the jury-instruction error was harm-
less because the district court didn’t “misstate the law or mislead
the jury to the prejudice of the objecting party” (Discount Rock). See
Bhogaita, 765 F.3d at 1285 (emphasis added and citation omitted).
That’s because Discount Rock never rebutted the presumption.
Florida courts have recognized four kinds of rebutting evi-
dence in rear-end-collision cases: “(1) a mechanical failure in the
rear driver’s vehicle, (2) the lead driver’s sudden stop, (3) the lead
driver’s sudden lane change, and (4) the lead driver’s illegal or im-
proper stop.” Fonger v. Nall, 286 So. 3d 332, 333 (Fla. Dist. Ct. App.
2019) (citation omitted); see also Alford v. Cool Cargo Carriers, Inc.,
936 So. 2d 646, 650 (Fla. Dist. Ct. App. 2006) (“In the[ latter three]
instances, the purpose for the presumption is not served because
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28 Opinion of the Court 21-14132
the driver of the lead vehicle was a contributing cause of the colli-
sion . . . .”). Discount Rock argues that it presented rebuttal evi-
dence in two forms. First, it points to evidence that Del Okeyes
and Ponce “illegally and unexpectedly took evasive action onto the
shoulder” to avoid hitting the women’s Nissan, arguing that it was
“an unavoidable accident precipitated by the sudden and unex-
pected actions of the two vehicles immediately ahead of” Blanco’s
truck. Second, Discount Rock relies on evidence that the women’s
“unexpected stop on a busy two-lane highway”—not “at an inter-
section or red light” but instead while “attempting to cross traffic
into a scenic area”—caused Del Okeyes and Ponce “to take evasive
action” in the first place.
But Del Okeyes and Ponce’s evasive action is a non-starter.
To rebut the presumption, Discount Rock had to show “the driver
of the lead vehicle was a contributing cause of the collision.” Alford,
936 So. 2d at 650 (emphasis added); see also Fonger, 286 So. 3d at 333
(identifying “lead driver’s” conduct that can rebut presumption).
Neither Del Okeyes nor Ponce was the “lead driver” in the colli-
sion.
As for evidence of the Nissan’s “unexpected stop,” “[i]t is
well settled that a sudden stop, without more, is insufficient to
overcome the presumption of negligence.” Clampitt, 786 So. 2d at
575. Instead, what’s required is evidence of “a sudden stop by the
[lead] driver at a time and place where it could not reasonably be
expected by the following driver.” Id. at 574 (citation omitted)
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21-14132 Opinion of the Court 29
(contrasting such evidence with “abrupt and arbitrary . . . ‘gotcha’
stop” in Eppler v. Tarmac America, Inc., 752 So. 2d 592 (Fla. 2000)).
So even if Discount Rock provided evidence that the
women’s Nissan stopped suddenly—despite Fischer’s testimony
that the Nissan was stopped or moving slowly for “at least five sec-
onds” before impact, Pinkerton’s and Del Okeyes’s statements that
the Nissan gradually slowed to a stop, and Ponce’s admission that
he didn’t know how long the Nissan had been stopped—that’s not
enough to rebut the presumption. The stop also had to be “at a
time and place where it could not reasonably be expected by”
Blanco. Id. (citation omitted).
And that’s simply not the case here. The undisputed evi-
dence showed that the turn into the scenic viewing area was both
legal and expected. No signs prohibited drivers from turning into
or parking at the scenic viewing area. In fact, Perez testified that
Florida law didn’t prohibit the left turn the women were waiting
to make, and his belief that the turn was unsafe didn’t transform it
into illegal or unexpected conduct. Further, the roadway markings
where the women were stopped—which “were dashed and such
that would allow a left turn”—showed that turns could be expected
into the scenic viewing area. There was thus no jury question
about whether Blanco should have reasonably expected the
women’s vehicle to stop. Cf. id. at 575 (concluding stop for turn
was reasonably expected on two-lane road bordered by businesses
and residential areas “all of which maintain[ed] entrances and exits
on the roadway”); Wright v. Ring Power Corp., 834 So. 2d 329, 331
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30 Opinion of the Court 21-14132
(Fla. Dist. Ct. App. 2003) (“[I]t was reasonable for Datson to expect
Wright’s car to stop suddenly when attempting to turn left onto
the highway where there was no traffic signal requiring the high-
way traffic to stop.”); Hunter v. Ward, 812 So. 2d 601, 602–04 (Fla.
Dist. Ct. App. 2002) (concluding stop for turn was reasonably ex-
pected from inside lane of four-lane road at “a break in the grass
median designed for turning”).
In short, Discount Rock didn’t produce evidence rebutting
the presumption that Blanco was negligent when he rear-ended the
Nissan—meaning the district court, had it been asked, should’ve
directed a verdict in the estates’ favor rather than giving the issue
of Blanco’s negligence to the jury. See, e.g., Birge, 107 So. 3d at 353
(“Unless this presumption is rebutted, the beneficiary of the pre-
sumption is entitled to judgment thereon as a matter of law.”);
Fonger, 286 So. 3d at 334 (“[I]f the stop occurs at a place where it
was to be expected, the presumption of negligence is not rebutted,
and the plaintiff is entitled to a directed verdict as to the rear
driver’s negligence.” (citation omitted)). Thus, not only was the
jury-instruction error harmless because the estates were entitled to
a directed verdict, see Bhogaita, 765 F.3d at 1285, but Discount Rock
actually benefitted from that error by getting an unearned second
bite at the negligence-issue apple. Any jury-instruction error was
an “error without injury” and not reversible because “[t]he submis-
sion to the jury, albeit under an erroneous standard, was more than
the defendant was entitled to.” See Charleston Nat’l Bank v. Hen-
nessy, 404 F.2d 539, 543–44 (5th Cir. 1968) (“The instruction did not
correctly state the law, but the error was without injury” where the
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21-14132 Opinion of the Court 31
rear-ending driver’s evidence to rebut the presumption of negli-
gence “never rose above a scintilla at most, conjecture and specu-
lation at least. The trial court should have instructed the jury that
the presumption of negligence required a verdict for the plaintiff.”).
Demonstrative Aid
Finally, Discount Rock argues that the district court abused
its discretion in permitting Fischer to publish an accident-recon-
struction animation contained in his demonstrative aid Power-
Point.7 Discount Rock asserts that the district court abused its dis-
cretion because the animation was untimely and “patently false
and misleading.”
As to timeliness, Discount Rock contends that the animation
was created after Fischer’s deposition and only disclosed by the es-
tates late on “the night before [Fischer] was to testify.” But even
assuming that Discount Rock is right, it has not shown that any
error substantially prejudiced its defense. Discount Rock conceded
that all but four slides in Fischer’s PowerPoint had been previously
disclosed in discovery, with only minor edits. And Discount Rock
had ample opportunity to cross examine Fischer about the Power-
Point, including that it omitted vehicles from the animation. Cf.
7
We review a district court’s decision to allow use of a demonstrative aid for
abuse of discretion. Bhogaita, 765 F.3d at 1290–91. We will reverse for a new
trial based on an evidentiary error “only in cases where substantial prejudice
exists.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir. 2004) (cita-
tion omitted).
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32 Opinion of the Court 21-14132
Maiz v. Virani, 253 F.3d 641, 667 (11th Cir. 2001) (holding that, even
if district court should have excluded expert testimony, any error
was harmless partly because the objecting parties “had ample op-
portunity to cross-examine” the expert about his assumptions).
Discount Rock also argues that the animation mischaracter-
ized the facts because it “inexplicably . . . erased two of the vehi-
cles” involved in the lead-up to the collision—thereby “impl[ying]
that the Discount Rock truck had a wholly unobstructed view of
[the] stopped Nissan, and was sufficiently behind [it] to avoid a col-
lision, but nevertheless rear-ended it”—which was “purposefully
misleading[] and highly prejudicial.” Discount Rock contends that
the district court should’ve excluded the video under Federal Rule
of Evidence 403 as “inherent[ly] confusing” and “misleading.”
But Discount Rock hasn’t shown that the animation was “in-
herent[ly] confusing” or “misleading.” First, Fischer repeatedly ref-
erenced the missing vehicles during his testimony about the ani-
mation. He mentioned them before he played the animation, in-
forming the jury that “at least two cars” passed on the shoulder
before the collision. He mentioned them after he played the ani-
mation, when he displayed and discussed a PowerPoint slide de-
picting the passing vehicles’ path around the Nissan. He also told
the jury that he’d reviewed Del Okeyes’s and Ponce’s statements
to the Florida Highway Patrol while preparing his expert report
(and testified that Ponce’s statement conflicted with the black-box
and other witnesses’ evidence). And Fischer acknowledged and ex-
plained—on both direct and cross-examination—that the passing
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21-14132 Opinion of the Court 33
vehicles didn’t appear because the animation “was strictly to show”
the impacts between the Nissan, Discount Rock’s truck, and the
recreational vehicle.
And second, Del Okeyes and Ponce testified after Fischer tes-
tified—meaning that, after seeing Fischer’s animation, the jury
heard testimony directly addressing the roles the passing vehicles
played in the events the day of the collision. In sum, the district
court didn’t abuse its discretion in allowing the estates to publish
Fischer’s accident-reconstruction animation because the animation
wasn’t so “confusing” or “misleading” that rule 403 should’ve op-
erated to exclude it. Cf. Bhogaita, 765 F.3d at 1291 (emphasizing
that district court’s “discretion is particularly broad with respect to
[r]ule 403 determinations”); cf. also Wright v. CSX Transp., Inc., 375
F.3d 1252, 1261 (11th Cir. 2004) (clarifying that Seventh Circuit case
upon which party relied to argue train-light demonstration
should’ve been excluded “actually held . . . that when a demonstra-
tion . . . differs from the actual conditions of the collision, the trial
court has the discretion whether to admit it and allow the differing
conditions to be highlighted on cross-examination,” which was
“exactly what happened [t]here”).
CONCLUSION
We have jurisdiction over Discount Rock’s appeal because
the district court’s order dismissing Blanco satisfied Federal Rule of
Civil Procedure 41(a)(2), and so the district court’s entry of judg-
ment on the jury’s verdict was final.
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34 Opinion of the Court 21-14132
As to the merits, the district court didn’t err in denying judg-
ment as a matter of law for Discount Rock on the estates’ negligent
entrustment claim because there was sufficient evidence for the
jury to find that Discount Rock negligently entrusted Blanco with
the modified truck. And even though the district court erred in
instructing the jury on Florida’s rebuttable presumption that a rear-
ending driver was negligent, that error wasn’t “to the prejudice of”
Discount Rock, see Bhogaita, 765 F.3d at 1285, because Discount
Rock failed to produce evidence rebutting the presumption. Fi-
nally, any untimely disclosure of the demonstrative aid didn’t sub-
stantially prejudice Discount Rock, and the district court didn’t
abuse its discretion in allowing the demonstrative aid to be pub-
lished because it wasn’t so “confusing” or “misleading” that it
should’ve been excluded under Federal Rule of Evidence 403. The
district court’s entry of judgment on the jury verdict for the estates
is therefore AFFIRMED.
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