Online Reference: FLWSUPP 2207FARA
Torts — Automobile accident — Rear-end collision — Action for property damage brought by owner of lead vehicle against driver of following vehicle, which was itself struck from the rear by a third vehicle — Evidence — Trial court erred in allowing testimony by plaintiff, who was not present during accident and had no personal knowledge of accident — Trial court further erred in allowing plaintiff to rely openly on inadmissible accident report during his testimony, allowing plaintiff to present impermissible hearsay testimony about the accident report, and allowing plaintiff to present the former testimony of the third driver involved the accident, which testimony was given in separate lawsuit — Cross-examination — Trial court violated due process by preventing defendant from cross-examining plaintiff as to amount of damages his vehicle sustained in accident — Trial court erred in failing to apportion and offset negligence from second tortfeasor in three-car accident when finding defendant negligent
JAMETTE FARAHQUAZ & RONALD YANIZ, Appellants, v. TIM VESCOVI, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-383 AP. January 15, 2014. Appeal from the County Court, Miami-Dade County, Small Claims Division, Jacqueline Schwartz, Judge. Counsel: Reginald J. Clyne, for Appellant. Tim M. Vescovi, pro se Appellee.
(Before CARDONNE ELY, RODRIGUEZ, DIAZ, JJ.)
(PER CURIAM.) This matter arises out of a three-car accident which occurred on September 26, 2009 in Miami-Dade County, Florida. The Appellee/Plaintiff, Tim Vescovi’s (“Vescovi”), car, driven by David Gomez, was struck from behind by the Appellant/Defendant, Ronald Yaniz’s (“Yaniz”), car, as a result of it being first struck by a vehicle driven by Midael Concepcion. Vescovi, who was not at the scene of the accident, sued Yaniz and Concepcion in separate trials for damages to his vehicle. Vescovi’s lawsuit was eventually dismissed against Concepcion due to Vescovi’s non-appearances after certain trial dates were set. Vescovi, however, proceeded with his lawsuit against Yaniz.
A trial was conducted and, despite the fact that he was not present at the scene of the accident (he was in Orlando at the time, where he resides), Vescovi was allowed to testify. Over Yaniz’s objection, Vescovi drew a diagram of the scene of the accident from knowledge he had acquired by reading the Traffic Accident Report. Further, in testifying, Vescovi stated that he was relying on the previous testimony of Concepcion in the former’s suit against the latter, even though the record indicates that the suit was eventually dismissed with prejudice due to Vescovi’s failure to appear. Yaniz objected to Vescovi’s testimony based on Concepcion’s alleged testimony but, again, the court overruled the objection and allowed the testimony.
The trial court eventually ruled in favor of Vescovi and against Yaniz, awarding Vescovi $3,200 for damages sustained to his car, and 3,703.00 in total damages. Yaniz sought to cross-examine Vescovi on the amount of damages sustained by his vehicle but was denied by the court. Yaniz also sought to have this amount proportioned since he argued that there was more than one tortfeasor. However, his request was denied.
Yaniz appeals the judgment, arguing that it should be reversed because Vescovi was incompetent to testify, and his testimony constituted inadmissible hearsay; that Yaniz was denied his constitutional right to cross-examination; and lastly, that the court unlawfully failed to apportion the damages between Yaniz and Concepcion in finding that Yaniz was negligent.
We agree with all three of Yaniz’s points and vacate the judgment entered against him and in favor of Vescovi.
Pursuant to Section 90.604 of the Florida Statutes, “a witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.” Here, Vescovi admitted that he was not at the scene, as he was in Orlando, his hometown, at the time of the accident, and that all of his information about the accident came by way of secondary sources. Being in Orlando at the time of the accident, Vescovi, obviously, could not have possessed the capacity to observe or perceive those facts surrounding the accident and recollect what he observed. See § 90.604, Fla. Stat. (notes); State v. Eubanks, 609 So. 2d 107, 110 (Fla. 4th DCA 1992) (citing Ehrhardt, Florida Evidence § 604.1 (1992 ed.) (“[a] witness who has actually perceived and observed a fact is the most reliable source of information.”).) Thus, as a witness, Vescovi was overall incompetent to testify, and the trial court abused its discretion in allowing him to do so, irrespective of the fact that this was his case and he was proceeding pro se.
Further, it is clear that Traffic Reports are inadmissible at trial. Section 316.066(4) of the Florida Statutes states:
Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal.
Here, even though the actual report was not introduced at trial, the trial court should not have allowed Vescovi to openly rely on it, as to allow such is error. See e.g. White v. Consol. Freightways Corp. of Delaware, 766 So. 2d 1228, 1231 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D2327b] (mistrial granted for improper and impermissible reference to contents of an Accident Report); Alley v. State, 553 So. 2d 354 (Fla. 4th DCA 1989) (holding that admission of incriminating statement made by motorist during accident report phase of officer’s investigation constituted reversible error).
With respect to Vescovi’s direct testimony, all of it, in essence, constituted impermissible hearsay, and should have been excluded, (even assuming he was competent to testify in the first place, which he was not). His reliance on, and statements relating to, the Accident Report, as well as the allegedly previous testimony of Concepcion, were all out-of-court statements offered to prove the truth of the matter asserted, and were not admissible. See §§ 90.801(1)(c); 90.82, Fla. Stats. (2013). Moreover, Vescovi’s testimony would not fall into any legally-recognized exceptions to the hearsay rule. See generally §§ 90.804(2) (former testimony); 90.803(8) (public records exception to hearsay rule, though Comment noting “nothing in this subsection affects existing statutes that make privileged specific public records, e.g., police accident reports, or that provide for the admissibility of specific government reports.”)
The trial court did not allow Yaniz to cross-examine Vescovi as to the amount of damages his car sustained in the accident. Vescovi testified that his car sustained $3,200 in damages, but when Yaniz sought to question him about this, the court prevented him from doing so. This was fundamentally improper and violated basic due process. See generally Davis v. Alaska, 415 U.S. 308, 315 (1974) (general right to confront witnesses with cross-examination).
Finally, Yaniz, pursuant to the seminal case of Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), was entitled to have any negligence from a second identified tortfeasor offset, even if the second tortfeasor was not a party to the lawsuit. Here there was a three-car collision. Notwithstanding the fact that Vescovi’s lawsuit against Concepcion was dismissed, whatever damages Concepcion’s negligence may have proximately caused to Vescovi’s car, Yaniz, as a tortfeasor, was entitled to have this apportioned away under Fabre. However, the trial court did not conduct this required inquiry and found Yaniz responsible for the total amount of damages the car sustained, $3,200. This was reversible error as well.
Accordingly, we remand this matter back to the trial court with instructions to vacate the judgment of damages entered in favor of Vescovi and against Yaniz, as the trial court abused its discretion in allowing Vescovi to testify initially, and then with inadmissible hearsay evidence. Further, the trial committed fundamental error in not allowing cross-examination as to the alleged damages sustained by Vescovi’s vehicle, and then not conducting a Fabre analysis.
REVERSED AND REMANDED WITH INSTRUCTIONS. (CARDONNE ELY, RODRIGUEZ, and DIAZ, JJ., concur.)
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