Austin Tyler Robertson, et al. v. Elicia Antoine

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
AUSTIN TYLER ROBERTSON,
Appellant,
v.
ELICIA ANTOINE and KONOPKA SERVICES, INC.,
Appellees.
No. 4D2025-0851
[November 19, 2025]
Appeal 	of 	nonfinal 	order 	from 	the 	Circuit 	Court 	for 	the 	Fifteenth
Judicial Circuit, Palm Beach County; Bradley G. Harper, Judge; L.T. Case
No. 502023CA013305.
Bonnie M. Sack and Daniel S. Weinger of Luks, Santaniello, Petrillo,
Cohen & Peterfriend, Fort Lauderdale, for appellant.
Ron Renzy of Sunshine Appeals, P.A., Coral Springs, for appellee Elicia
Antoine.
L EVINE , J.
Appellant, a defendant in an automobile accident negligence case,
appeals an order granting the plaintiff leave to amend her complaint to
add a claim for punitive damages. 	Appellant argues that the complaint
improperly contains a stand-alone count for punitive damages and that
the proffered evidence is insufficient for punitive damages. 	We agree and
reverse.
Appellant Robertson was operating a forklift on a public roadway when
he was involved in an accident with appellee Antoine, who was driving a
vehicle. Antoine initiated a negligence action against Robertson along with
his employer, Konopka Services, Inc. After taking depositions, she sought
leave to amend her complaint to add a claim for punitive damages.
Antoine argued that Robertson’s admission that he operated the forklift
on the wrong side of the roadway in violation of sections 316.2225 and

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316.1515, 	Florida 	Statutes 	(2022)1, 	was 	sufficient 	to 	demonstrate
intentional misconduct or gross negligence, entitling her to raise a claim
for punitive damages.
In support of her motion for leave to amend, Antoine proffered the
following: Robertson’s deposition, her 	own deposition, and the police
report. 	We address these items below in seriatim.
Robertson testified that at the time of the accident, he was working for
a subsidiary of Konopka Services and that his job duties included ordering
parts, loading trucks, repairing fences, preparing quotes, and “whatever
[his boss] asked [him] to do.” The morning of the accident, his boss asked
him to move five pallets of furniture to a nearby building about twenty feet
down the roadway.
Robertson noted that the accident occurred in the morning just as the
sun was coming up and that traffic was “pretty dense.” 	He testified that
he was not on his phone when the crash occurred or immediately before
because he wanted to be aware of his surroundings. He also testified that
“[f]orklifts are going up and down that road all the time.”
Robertson explained that he was on his third trip back and forth with
the pallets of furniture when he first saw Antoine’s vehicle as he was about
to make a left turn. 	He testified that she did not look to the side, ran the
stop sign, and hit his forklift. 	He stated:
I checked the forklift, made sure everything was good, started
moving the pallet to the furniture because the day before I put
them on pallets. 	And I’m on like the third one, I drop it up in
the front and I—I’m coming back out, I make a left out of our
parking lot and I stayed closest to the sidewalk and grass
because it was the safest spot for me because it was a busy
1 The pertinent portion of section 316.2225, subsection (7), states: “On every
slow-moving vehicle or equipment . . . or other machinery designed for use and
speeds less than 25 miles per hour . . . there must be a triangular slow-moving
vehicle 	emblem 	SMV as 	described 	in, 	and 	displayed 	as 	provided 	in, 	this
subsection.”
Section 316.1515 provides: “The driver of any vehicle shall not turn the vehicle
so as to proceed in the opposite direction upon any street unless such movement
can be made in safety and without interfering with other traffic and unless such
movement is not prohibited by posted traffic control signs. 	A violation of this
section is a noncriminal traffic infraction, punishable as a moving violation as
provided in chapter 318.”

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road. 	And literally, the left turn that I needed to make was
like 20 feet, if even, to make the left. 	So it didn’t make sense
to me to cut all the way across, just to cut all the way back
across, it just felt unsafe. 	And I knew there was a stop sign
right there. 	I was hoping nobody would run it. 	So as I was
coming up to make my left, I’m looking at my left, I see a red
Honda Accord and I noticed she is not looking at me. 	I said
to myself, she is going to hit me. She hit the side of my forklift,
like right in the middle. 	And I pulled off to the side—to the
back, parked the forklift, came up to the front, and told my
boss what happened immediately. 	We went out to the front.
She pulled her car into our parking lot. 	She got out, grabbed
her bumper, and dragged it over there.
Robertson acknowledged that when the accident occurred, he was in
“the wrong lane of travel,” stating: “I was on that side because I felt safest
over there with the way the busy it gets in the morning. 	And plus I could
see people coming towards me. 	I didn’t expect somebody to run the stop
sign and hit me.”
When asked whether it was his understanding that he should be
driving in the wrong lane for safety, he responded: “In that area, yes, sir.
That’s like anybody walking down the road on incoming traffic that has no
sidewalk to make sure they can see the vehicles coming. 	That was my
understanding. I didn’t want to cut across three to four lanes just to make
that left right there, I just felt unsafe.”
At deposition, Antoine described the traffic conditions at the time of the
accident as “clear” stating, “[T]here was nothing.” 	She testified that she
was heading to work and was in her lane and stopped at the stop sign.
She stated, “I was going to make a right turn to go to work and the other
car had a forklift and then ran into me—left his lane and ran into me.”
She claimed, “I was at the stop sign and I was about to start to make the
turn, then he ran into me.”
The traffic crash report noted that Robertson was traveling “east in the
right westbound lane of 25th Street” and that Antoine “had the right of
way.” 	Robertson was found to be at fault for the accident.
Following a hearing, the trial court found that Robertson’s admission
that he operated the forklift against the flow of traffic was sufficient

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evidence of intentional misconduct and permitted Antoine to proceed with
a claim against Robertson for punitive damages.2
Robertson raises two primary claims on appeal: (1) that Antoine failed
to meet the procedural requirements to raise a punitive damages claim,
and (2) that Antoine failed to proffer sufficient evidence to support a
punitive damages claim.
Our review of an order on a motion for leave to amend to assert a claim
for punitive damages is de novo. Creech v. Santomassino, 395 So. 3d 549,
552 (Fla. 4th DCA 2024).
A plaintiff must meet several procedural and evidentiary requirements
to be permitted leave to amend a complaint to assert a claim for punitive
damages. 	As provided in section 768.72, Florida Statutes (2022):
(1) In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in
the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages. 	The claimant
may move to amend her or his complaint to assert a claim for
punitive damages as allowed by the rules of civil procedure.[3]
The rules of civil procedure shall be liberally construed so as
to allow the claimant discovery of evidence which appears
reasonably calculated to lead to admissible evidence on the
issue of punitive damages. 	No discovery of financial worth
shall proceed until after the pleading concerning punitive
damages is permitted.
(2) A defendant may be held liable for punitive damages only
if the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional
2 Antoine also argued that she should be entitled to bring a claim for punitive
damages against Robertson’s employer, Konopka Services. 	Because Antoine
failed to include a punitive damages claim against Konopka Services in her
proposed amended complaint and failed to bring sufficient evidence to support a
punitive damages claim against the employer, the trial court denied that relief.
That issue is not before this court.
3 Florida Rule of Civil Procedure 1.190(f) states: “A motion for leave to amend a
pleading to assert a claim for punitive damages shall make a reasonable showing,
by evidence in the record or evidence to be proffered by the claimant, that
provides a reasonable basis for recovery of such damages.”

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misconduct or gross negligence. 	As used in this section, the
term:
(a) “Intentional misconduct” means that the defendant had
actual knowledge of the wrongfulness of the conduct and the
high probability that injury or damage to the claimant would
result and, despite that knowledge, intentionally pursued that
course of conduct, resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct
was 	so 	reckless 	or wanting 	in 	care 	that 	it 	constituted a
conscious disregard or indifference to the life, safety, or rights
of persons exposed to such conduct.
The trial court did not make any findings of gross negligence and relied
solely on a finding of intentional misconduct. 	“Although we have de novo
review of orders granting or denying motions to add punitive damages
claims, de novo review is not a proper substitute for the lack of an
affirmative finding in the first instance.” 	Book v. Sharief, 418 So. 3d 160,
164 (Fla. 4th DCA 2025) (citation omitted). 	In Book, this court remanded
because the trial court did not make an affirmative finding as to either
intentional misconduct or gross negligence. 	Here, in contrast, the trial
court made an affirmative finding as to intentional misconduct. Therefore,
we limit our discussion to intentional misconduct.
In Federal Insurance Co. v. Perlmutter, 376 So. 3d 24, 33-34 (Fla. 4th
DCA 2023), review granted, No. SC2024-0058, 2024 WL 4948685 (Fla.
Dec. 3, 2024), we held:
[A] “reasonable showing by evidence” of “a reasonable basis”
for punitive damages means the movant must demonstrate
the movant will be able to produce competent, substantial
evidence at trial upon which a rational trier of fact could find
that 	the 	defendant 	specifically 	intended 	to 	engage 	in
intentional 	or 	grossly 	negligent 	misconduct 	that 	was
outrageous and reprehensible enough to merit punishment.
Perlmutter further 	stated that to demonstrate liability based upon
intentional misconduct, a claimant needs to make both a pleading and
evidentiary 	showing 	demonstrating 	that 	“the 	defendant 	had actual
knowledge of the wrongfulness of the conduct and the high probability that
injury or damage to the claimant would result and, despite that knowledge,
intentionally 	pursued 	that 	course 	of 	conduct, 	resulting 	in 	injury 	or
damage.” Id. at 35 (citation and emphasis omitted). We further explained,

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“In other words, section 768.72(2) requires an evidentiary showing of
specific 	intent, 	not 	general 	intent, 	to 	knowingly 	engage 	in 	wrongful
conduct.” 	Id. (emphasis omitted). 	“As the United States Supreme Court,
the Florida Supreme Court, and this Court have said, ‘[punitive damages]
are not compensation for injury. 	Instead, they are private fines levied by
civil 	juries 	to 	punish 	reprehensible 	conduct 	and 	to 	deter 	its 	future
occurrence.’” 	Id. at 36 (citation and emphasis omitted).
“[L]ong-established 	precedent 	dictates 	that 	actions 	which 	deserve
punitive 	sanctions 	involve 	outrageous 	conduct, 	malicious 	motive, 	or
wrongful intention.” 	William Dorsky Assocs. v. Highlands Cnty. Title &
Guar. Land Co., 528 So. 2d 411, 412 (Fla. 2d DCA 1988). 	“[P]unitive
damages are reserved for truly ‘culpable conduct,’” where the conduct is
“so outrageous in character, and so extreme in degree . . . [that] the facts
[of the case] to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, ‘Outrageous!’”
Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357 So. 3d 703,
706 (Fla. 4th DCA 2023) (citation omitted); see also Cable News Network,
Inc. v. Black, 374 So. 3d 811, 812 (Fla. 4th DCA 2023) (recognizing that to
state a claim for punitive damages, the plaintiff had to proffer a reasonable
basis for recovery of such damages).
“[T]he required level of negligence for punitive damages is equivalent to
the conduct involved in criminal manslaughter.” 	Valladares v. Bank of
Am. Corp., 197 So. 3d 1, 11 (Fla. 2016). 	The Florida Supreme Court has
discussed the required level of proof to demonstrate “culpable negligence”
for manslaughter or to authorize the recovery of punitive damages as
follows:
[T]o authorize the recovery of exemplary or punitive damages,
the negligence complained of must be of “a gross and flagrant
character, evincing reckless disregard of human life, or of the
safety of persons exposed to its dangerous effects, or there is
that entire want of care which would raise the presumption of
a conscious indifference to consequences, or which shows
wantonness or recklessness, or a grossly careless disregard of
the 	safety 	and 	welfare 	of 	the 	public, 	or 	that 	reckless
indifference to the rights of others which is equivalent to an
intentional violation of them.”
Smith v. State, 65 So. 2d 303, 305 (Fla. 1953) (citation omitted).
Initially, we find that Antoine improperly pled her punitive damages
claim as a stand-alone count. 	This is impermissible since there is no

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separate cause of action for punitive damages. See McGlothin v. McDonald,
379 So. 3d 535, 535-36 (Fla. 5th DCA 2023) (explaining that Florida law
does not permit a stand-alone count for punitive damages). Thus, Antoine
failed to satisfy the procedural requirements for raising a claim for punitive
damages.
We also agree with Robertson that Antoine failed to proffer sufficient
evidence to demonstrate that he engaged in intentional misconduct that
rose to the level required by the statute. 	Robertson’s testimony was that
he believed that it was safer for him to travel approximately twenty feet on
the roadway against traffic, considering the placement of the stop sign,
than to make multiple turns across the roadway in his forklift. 	Although
his belief may have been mistaken, that does not demonstrate that he had
“actual 	knowledge 	of 	the 	wrongfulness 	of 	the 	conduct 	and 	the 	high
probability 	that 	injury 	or 	damage 	to 	the 	claimant 	would 	result.”
§ 768.72(2)(a), Fla. Stat. 	In fact, Robertson testified that he drove in that
fashion in order to lower the probability of injury or damage to others.
Robertson’s actions do not establish conduct that would permit punitive
damages. 	See Pinnacle Prop. Mgmt. Srvs., LLC v. Forde, 372 So. 3d 292
(Fla. 4th DCA 2023) (stating that where a burglar entered an open window
and lethally shot a resident, the management company’s negligence in
failing to expeditiously fix the entrance gate did not establish conduct that
would 	permit 	recovery 	of 	punitive 	damages). 	The 	allegations 	of
Robertson’s 	conduct 	are 	more 	properly 	characterized 	as 	ordinary
negligence. 	The evidence does not show specific intent to knowingly
engage in wrongful conduct with actual knowledge of a high probability
that injury or damage would occur, nor is this conduct “outrageous and
reprehensible enough to merit punishment.” 	Perlmutter, 376 So. 3d at
34.4
We find that the trial court erred in granting leave to plead punitive
damages. 	The order is reversed and remanded with instructions that the
motion for leave to amend Antoine’s complaint be denied.
4 We note that a party’s violation of traffic law is, standing alone, an insufficient
basis for punitive damages. See Creech, 395 So. 3d at 554 (finding that a truck
driver glancing at his phone in violation of traffic laws did not rise to the level of
gross negligence or intentional misconduct needed to assert a claim for punitive
damages; rather, “[t]here must be some additional act that shows the cell phone
usage was reckless or a conscious disregard of or indifference to others”). Applied
here, in this case there is no “additional act” that shows that Robertson’s decision
to travel twenty feet against the flow of traffic was a reckless or conscious
disregard or indifference to others.

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Reversed and remanded.
KUNTZ , C.J., concurs.
FORST , J., dissents with opinion.
F ORST , J., dissenting.
I 	respectfully 	dissent. 	Appellee 	Antoine 	has 	made 	a 	“reasonable
showing by evidence in the record or proffered by the claimant which
would provide a reasonable basis for recovery of [punitive] damages.”
§ 768.72(1), 	Florida 	Statutes 	(2022). 	She 	has 	not 	yet 	established
entitlement to damages, let alone punitive damages. However, both parties
agree that Appellant Robertson was driving his employer’s forklift on the
wrong side of the road and against the flow of traffic, and the police
accident report determined Robertson had been at fault for the collision of
the parties’ vehicles. 	Moreover, Robertson acknowledges that he was
consciously driving in the wrong lane. 	Under these circumstances, a
punitive damages “gatekeeper” could permit Antoine to pursue punitive
damages.1 	A conscious decision to drive on the wrong side of the road
could constitute “gross negligence”—“conduct . . . so reckless or wanting
in care that it constituted a conscious disregard or indifference to the life,
safety, or rights of persons exposed to such conduct.” 	§ 768.72(2)(b), Fla.
Stat. (2022).
I agree with the majority that Antoine requested punitive damages in
the wrong manner, by pleading a stand-alone punitive damages count in
an amended complaint. 	Neither the trial court nor Appellant Robertson
recognized this error. 	Thus, Robertson waived this issue. 	See Robins v.
Colombo, 253 So. 3d 94, 97 (Fla. 3d DCA 2018) (finding the challenge to a
procedural defect in the claim for punitive damages was unpreserved and
“[h]ad Petitioner raised the issue in the trial court by contemporaneous
objection, 	this 	now-asserted 	defect 	could 	easily 	have 	been 	cured 	by
converting 	the 	interlineated 	amendment 	to 	a 	more 	formal 	amended
pleading.”). 	The form of Antoine’s request to seek punitive damages can
be corrected below if we find a substantive basis to affirm the trial court’s
order granting Antoine leave to add a punitive damages claim.
I further agree with the majority that the trial court erred in granting
Antoine’s punitive damages motion under section 768.72(2)(a), Florida
1 “The statute requires the trial court to act as a gatekeeper and precludes a claim
for punitive damages where there is no reasonable evidentiary basis for recovery.”
Bistline v. Rogers, 215 So. 3d 607, 611 (Fla. 4th DCA 2017).

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Statutes (2022), the “intentional misconduct” prong. 	Antoine’s amended
complaint adding the punitive damages “count” correctly recited section
768.72(2)’s two grounds for an award of punitive damages: intentional
misconduct and gross negligence. 	Antoine’s amended complaint did not
specify 	that 	she 	was 	limiting 	her 	punitive 	damages 	claim 	to 	gross
negligence, though the amended complaint did characterize Robertson’s
conduct as “reckless” and “indifferen[t] to others[’] well-being,” which
indicates she was arguing “gross negligence.” 	The trial court, though
arguably reaching the right decision of granting the motion to amend, did
so 	under 	the 	wrong 	subsection, 	focusing 	solely 	on 	the 	“intentional
misconduct” option and failing to address the “gross negligence” claim. 	I
agree with the majority that Antoine did not proffer any reasonable basis
for 	finding 	Robertson’s 	driving 	in 	the 	wrong 	direction 	constituted
“intentional misconduct,” as that term has been construed.
Nonetheless, applying “tipsy coachman” analysis, we can adjudicate
whether the trial court reached the right result despite using the wrong
prong.2 	‘“Gross negligence’ means that the defendant’s conduct was so
reckless or wanting in care that it constituted a conscious disregard or
indifference 	to 	the 	life, 	safety, 	or 	rights 	of 	persons 	exposed 	to 	such
conduct.” 	§ 768.72(2)(b), Fla. Stat.
The majority opinion does not directly address the request to seek
punitive damages based on a claim of “gross negligence.” 	Like the trial
court, the focus is only on whether “intentional misconduct” has been
established as a potentially viable claim. 	Thus, the question remains:
could a jury find that Robertson’s choice to deliberately drive a forklift on
the wrong side of the road constituted “conduct [that] was so reckless or
wanting in care that it constituted a conscious disregard or indifference to
the 	life, 	safety, 	or 	rights 	of 	persons 	exposed 	to 	such 	conduct”?
§ 768.72(2)(b), Fla. Stat. (2022) (emphasis added).3
2 Under the “tipsy coachman” doctrine, an appellate court may affirm a trial
court’s “right” result, even if the trial court applied the “wrong” reasoning, so long
as the record contains any basis to support the judgment. 	Garcon v. W. Palm
Beach Police Dep’t, 112 So. 3d 768, 770 n.2 (Fla. 4th DCA 2013) (quoting
Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002)).
3 The majority opinion cites to Book v. Sharief, 418 So. 3d 160 (Fla. 4th DCA
2025), for the proposition that “de novo review is not a proper substitute for the
lack of an affirmative finding in the first instance.” 	Id. at 164. 	In Book, we
remanded the case to “the circuit court to make an affirmative finding indicating
whether and, if so, how the plaintiff has made a reasonable evidentiary showing
that the defendant had committed either “intentional misconduct” or “gross
negligence,” as those terms are defined in section 768.72(2), and as required for

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“In evaluating the sufficiency of the evidence proffered in support of a
punitive damages claim, the evidence is viewed in a light favorable to the
moving party.” Progressive Select Ins. Co. v. Lloyd’s of Shelton Auto Glass,
LLC, 396 So. 3d 916, 922 (Fla. 2d DCA 2024) (quoting CCP Harbour Island,
LLC v. Manor at Harbour Island, LLC, 373 So. 3d 18, 27 (Fla. 2d DCA
2023)); see also Cook v. Fla. Peninsula Ins. Co., 371 So. 3d 958, 962 (Fla.
5th DCA 2023) (“Thus, it is not whether the wrongful business practice
has already been proven, but whether the plaintiff made a sufficient
showing by evidence in the record or proffer to establish a reasonable basis
for it to ultimately be found that the defendant engaged in the wrongful
conduct as a business practice.”); Est. of Blakely v. Stetson Univ., Inc., 355
So. 3d 476, 481 (Fla. 5th DCA 2022) (“The appellate court views the record
evidence and the proffered evidence in the light most favorable to the
plaintiffs and accepts said evidence as true for the purpose of reviewing
whether a reasonable basis exists for punitive damages.”).
Antoine’s implicit motion to seek punitive damages asserts that, in light
of the deposition statements of Antoine and Robertson, a reasonable basis
exists to find Robertson had acted in a grossly negligent manner causing
the collision that injured Antoine. As detailed above, the parties agree that
Robertson was driving his employer’s forklift on a public street on the
wrong side of the road. At several points during his deposition, Robertson
explained that he was driving on the wrong side of the road “for my safety.”
He also acknowledged that he chose this course of travel motivated by
expediency, and he appears to blame Antoine for the collision based on
her failure to look out for a forklift driving against traffic.
The proffered evidence that Robertson deliberately drove an industrial
forklift against traffic on a public road at dawn during rush hour could, if
believed, 	support 	the 	allegation 	of 	gross 	negligence 	(“the 	defendant’s
conduct was so reckless . . . that it constituted a conscious disregard or
indifference 	to 	the 	life, 	safety, 	or 	rights 	of 	persons 	exposed 	to 	such
conduct.”). 	Accordingly, I respectfully dissent.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.
a jury to award punitive damages under section 768.72(2).” Id. At a minimum,
per Book, this case should be remanded for the trial court to address Antoine’s
“gross negligence” claims.