LAND O'LAKES - An appeals court has said Times Publishing Co. still could be held liable for an April 2001 accident in which a car driven by a man delivering the St. Petersburg Times struck two pedestrians.
The crash happened on U.S. 41 in Land O'Lakes. According to the Florida Highway Patrol, Marilyn Harper Daley and Alice Denga were walking along the road about 5 a.m. when they went into the path of a Chevrolet driven by Eric Toler.
Daley, 42, was seriously injured, and Denga, 51, was killed.
Toler, 29, had been working as a substitute newspaper deliverer for another man, Robert Heller, according to court records.
A guardian for Daley filed a lawsuit in May 2001 against Eric Toler and his father, Steve Toler, who owned the vehicle, and Times Publishing Co.
But Circuit Judge Linda Babb granted the Times' motion for summary judgment, ruling Eric Toler was an independent contractor.
The 2nd District Court of Appeal reversed that decision in an opinion Friday.
The court said Times Publishing Co. failed to establish conclusively that either Heller was not an employee or Eric Toler was not a so-called "subemployee."
"The Times thus failed to meet the burden it was required to meet to be entitled to judgment as a matter of law," the 2nd DCA opinion stated.
That sends the matter back to Circuit Court, where, the appellate court said, plaintiff Mary Harper "ultimately has the burden of establishing at trial that the Times was vicariously liable for the conduct of Eric Toler."
Times attorney George Rahdert said Monday the company would seek to resolve the issue in trial court, rather than file a rehearing motion with the 2nd DCA.
Aside from issues regarding Toler's employment status, Rahdert said there are other circumstances to consider.
Daley and her friend were intoxicated, Rahdert said, and at the time, Toler was done with the day's delivery. He had stopped to get milk, Rahdert said.
"We certainly regret the outcome," Rahdert added, "but we question whether the Times has responsibility under the circumstances."
Harper's attorney, Neal O'Toole, said in an interview that no milk was found in the car. Various facts support that Toler was "clearly a subemployee," he added, including that Toler had acted as a carrier helper for delivery persons for nearly a decade.
O'Toole also questioned the reliability of blood alcohol level tests and noted the road is "clear and straight, with no obstacles to vision."
