42
Fla. L. Weekly D1426aop of Form

Torts
— Automobile accident — Evidence — Hearsay — Trial court abused discretion
by excluding from evidence statements made by plaintiff to emergency medical
technician at accident scene and contained in EMS report — Evidence was
admissible as an admission — Error in excluding evidence was not harmless —
Defendant entitled to new trial on liability

RING POWER CORPORATION; DIESEL
CONSTRUCTION COMPANY; and MARK DAVID QUANDT, Appellants, v. GERARDO
CONDADO-PEREZ and NANCY RODRIGUEZ-VENTURA, Appellees. 2nd District. Case Nos.
2D16-353 and 2D16-397. (Consolidated) Opinion filed June 21, 2017. Appeal from
the Circuit Court for Pasco County; Linda H. Babb, Judge. Counsel: Carrie Ann
Wozniak of Akerman LLP, Orlando; and Katherine E. Giddings of Akerman LLP, Tallahassee,
for Appellants. Barbara Green of Barbara Green, P.A., Coral Gables; and Betsey
T. Herd of Morgenstern & Herd, P.A., Tampa, for Appellees.

[Original Opinion at 42 Fla. L. Weekly D793b]

BY ORDER OF THE COURT:

Appellants’ unopposed motion for
rehearing and/or clarification of opinion is granted. Appellees’ motion for
clarification is granted. The prior opinion dated April 7, 2017, is withdrawn,
and the attached opinion is issued in its place. No further motions for
rehearing will be entertained.

(BLACK, Judge.) In these
consolidated appeals, Ring Power Corporation, Diesel Construction Company, and
Mark David Quandt (collectively, Ring Power) challenge the judgments entered in
favor of Gerardo Condado-Perez (Mr. Condado) and Nancy Rodriguez-Ventura (Ms.
Rodriguez). Ring Power contends that two evidentiary rulings of the trial court
were erroneous and contributed to the verdict in favor of Mr. Condado and Ms.
Rodriguez. We agree with Ring Power, reverse the final judgments, and remand
for a new trial. Because we reverse the final judgments, we also reverse the
costs judgments predicated on those judgments.1

The underlying negligence action
arose out of a motor vehicle accident that occurred on the afternoon of
December 8, 2012. While in the course and scope of his employment with Ring
Power, Mr. Quandt was driving a large service truck owned by Diesel
Construction northbound on I-75 in Pasco County. Mr. Quandt’s truck collided
with a Ford Expedition driven by Mr. Condado and occupied by Ms. Rodriguez,
which was also travelling northbound on I-75. Mr. Quandt’s truck then collided
with a third vehicle. It was undisputed that there was a mattress in the
northbound lanes of the interstate, causing cars to stop or swerve
unexpectedly. Further, the parties agreed that there were two northbound lanes
of I-75, a median between the north and southbound lanes, and a narrow shoulder
adjacent to that median. The agreed-upon facts end there; the parties gave
opposing versions of what occurred.

Mr. Condado alleged that he did
nothing to contribute to the accident. He claimed that for two or more miles
prior to the accident he had been travelling in the left lane. He stated that
he saw traffic slowing ahead of him due to someone pulling a mattress out of
the roadway and claimed he did not suddenly swerve from the right lane into the
left lane in front of Mr. Quandt’s vehicle. Mr. Condado testified that he saw
Mr. Quandt’s vehicle directly behind him; he alleged that Mr. Quandt was
driving too fast and following too closely. When it appeared that Mr. Quandt’s
vehicle was going to rear-end Mr. Condado’s, Mr. Condado steered his vehicle
left, into the narrow shoulder. He testified that because of the narrowness of
the shoulder, he was unable to completely exit the left lane of the interstate.
He further testified that upon steering his vehicle into the left shoulder, the
rear of his vehicle was forcefully struck by Mr. Quandt’s large service truck,
causing Mr. Condado’s vehicle to roll over. As a result of the roll over, Mr.
Condado and Ms. Rodriguez suffered significant injuries.

Conversely, Mr. Quandt claimed that
the accident was caused entirely by Mr. Condado suddenly and unexpectedly
swerving from the right lane into the left lane and then into the left
shoulder, directly into Mr. Quandt’s path of travel. Mr. Quandt testified that
the mattress was less than 100 yards away when the traffic in front of him
reacted by slowing and stopping. He testified that he was able to reduce his
speed significantly and that he attempted to avoid the collision with Mr.
Condado’s vehicle by moving left into the shoulder and median. But because Mr.
Condado swerved further into the median in front of him, the accident was
unavoidable.

Each party called an expert witness
to advance his respective theory of the case. Mr. Condado called Dr. Elliott
Stern, a professional engineer, who concluded that Mr. Quandt caused the
accident by driving too fast for the conditions and the surrounding slowing
vehicles. Mr. Quandt called Arnold Wheat, an accident investigator certified in
traffic reconstruction, who concluded that Mr. Condado’s vehicle dramatically
and significantly swerved to the left — into and across Mr. Quandt’s path of
travel — causing the accident.

The critical evidentiary rulings
that Ring Power submits necessitate a new trial both involve an alleged
admission by Mr. Condado made to Kyle Paton, a Pasco County Fire Rescue
paramedic and emergency medical technician, who arrived on the accident scene
shortly after 911 was called. In addition to providing medical assistance to
Ms. Rodriguez, Mr. Paton spoke with Mr. Condado about the accident. Based on
that conversation, Mr. Paton prepared a mandatory patient care report (EMS
Report). The EMS Report provided that “Husband states he swerved to avoid a
mattress in the road and lost control of the car and went off the road” (Mr. Condado’s
statement). Mr. Paton prepared the EMS Report on the day of the accident.

Prior to trial, Mr. Condado filed a
motion in limine to prevent the above-quoted statement from being introduced as
evidence. Although he stipulated to the authenticity of the EMS Report, he
argued that the statement within the EMS Report was not trustworthy because it
referred to Mr. Condado as Ms. Rodriguez’s “husband,” but the two were not
married. Mr. Condado also argued that the statement was inadmissible because it
lacked a proper foundation; he claimed that he is not a proficient English
speaker and denied making the statement at all. Ring Power filed a response to
the motion in limine noting that Mr. Condado testified in deposition that he
had been married to Ms. Rodriguez for ten years. Ring Power further argued that
Mr. Condado’s denial of the statement was a matter of weight and credibility
for the jury rather than admissibility. Ring Power contended that the statement
was admissible as a spontaneous statement, excited utterance, and admission by
a party opponent pursuant to sections 90.803(1), (2), and (18), Florida
Statutes (2015). Ring Power also noted that although the statement was hearsay
within hearsay, it was admissible because both the EMS Report and Mr. Condado’s
statement within the report were subject to an exception under section 90.803.

Finding the statement inadmissible
through the EMS Report, the trial court granted the motion in limine.2 At trial, the court denied Ring
Power’s request to reconsider the ruling on the motion in limine and its
request to consider the EMS Report in its entirety as a recorded recollection
pursuant to section 90.803(5). The court also excluded from evidence Mr.
Paton’s deposition testimony, which included a discussion of Mr. Condado’s
statement and confirmed that Mr. Paton included in his report what he had been
told by Mr. Condado at the scene.

In opening statements, Mr. Condado
argued that although the defense would suggest that Mr. Condado swerved and
caused the accident, the evidence would prove otherwise. At that time, Ring
Power renewed its request to use Mr. Condado’s statement in the EMS Report
based on Mr. Condado’s opening statement. The court denied the request.

During trial, Mr. Condado testified
that he was very nervous after the accident and thought he was going to die
when his vehicle was rolling over. Ring Power again advanced its argument that
Mr. Condado’s statement in the report was a spontaneous statement or excited
utterance and should be admitted. It marked Mr. Paton’s deposition transcript
and video as well as the unredacted EMS Report as exhibits and requested that
the court admit them and publish them to the jury. The court declined to
reconsider its prior ruling and considered the exhibits as proffers. At that
time, Mr. Condado proffered Mr. Paton’s deposition cross-examination testimony.
The redacted EMS Report was introduced not by Ring Power but by Mr. Condado; it
was admitted into evidence without objection. Subsequently, the trial court
again declined Ring Power’s request to reconsider its prior ruling on the
admission of Mr. Condado’s statement.

At the close of the evidence, the
case was submitted to the jury, which was asked to answer three questions:

1. Was
there negligence on the part of Mark David Quandt which was a legal cause of
injury to [Mr. Condado and Ms. Rodriguez]?

2. Was
there negligence on the part of Gerardo Condado[ ] which was a contributing
legal cause of injury to [Mr. Condado and Ms. Rodriguez]?

3. Was
there negligence on the part of an unknown person responsible for the presence
of a mattress on the roadway which was a contributing legal cause of injury to
[Mr. Condado and Ms. Rodriguez]?

The jury answered yes to all three
questions, and it assigned 65% liability to Mr. Quandt, 33% liability to Mr.
Condado, and 2% liability to an unknown person responsible for the mattress in
the roadway. The total damages awarded to Ms. Rodriguez were $330,557.65 for
past and future medical expenses and $75,000 for pain and suffering; the total
damages awarded to Mr. Condado were $193,486.35 for past and future medical
expenses and $50,000 for pain and suffering.

Ring Power moved for a new trial,
reiterating its prior arguments on the admissibility of Mr. Condado’s statement
and Mr. Paton’s deposition. That motion was denied.

On appeal, Ring Power contends that
the trial court abused its discretion in making the evidentiary determinations
that Mr. Condado’s statement in the EMS Report and Mr. Paton’s deposition were
inadmissible and that such errors cannot be considered harmless. We agree.

The trial court erred in granting
Mr. Condado’s motion in limine and in denying Ring Power’s repeated requests to
introduce Mr. Condado’s statement into evidence. That the EMS Report itself was
admissible is not contested here; it is only the admissibility of Mr. Condado’s
statement within that report that is at issue.3 Notably, the EMS Report was
introduced into evidence by Mr. Condado; there was no objection to its
admission. Ring Power sought to introduce Mr. Condado’s statement within the
EMS Report as substantive evidence, contending that the statement met a number
of hearsay exceptions. Because we conclude that Mr. Condado’s statement was an
admission, and therefore admissible pursuant to section 90.803(18)(a), we
decline to address whether it was also a spontaneous statement or excited
utterance or could otherwise have been admitted as a recorded recollection.4

An admission is “[a] statement that
is offered against a party and is . . . [t]he party’s own statement in either
an individual or a representative capacity.” § 90.803(18)(a). That is, the
statement need only be (1) a party’s and (2) offered against that party to
qualify as an admission. Of course, the admission must also be relevant —
“tending to prove or disprove a material fact.” § 90.401. Statements of a party
offered by an opponent regarding causation in negligence actions are generally
considered admissions. See McKay v. Perry, 286 So. 2d 262, 263
(Fla. 2d DCA 1973) (stating that party’s statement to neighbor regarding
ownership of a dog in a dog-bite case would be admissible as an admission); Otis
Elevator Co. v. Youngerman, 636 So. 2d 166, 167 n.1 (Fla. 4th DCA 1994)
(noting that plaintiff’s statement to nurse regarding fall was an admission); Wilkinson
v. Grover, 181 So. 2d 591, 593-94 (Fla. 3d DCA 1965) (concluding that
plaintiff’s statements to physician as to how fast plaintiff was driving at
time of accident were admissions). However, the statements of a party need not
speak directly to liability to be admissions. See, e.g., Jones v.
Alayon, 162 So. 3d 360, 365 (Fla. 4th DCA 2015) (concluding that statement
by party regarding how money was spent was an admission). “It is well settled
that an admission against interest may be introduced into evidence as
substantive evidence of the truth of the matter stated.” Seaboard Coast Line
R.R. Co. v. Nieuwendaal, 253 So. 2d 451, 452 (Fla. 2d DCA 1971); accord
McKay, 286 So. 2d at 263. “This is so even though the person making the
admission against interest subsequently denies making such admission.” Seaboard
Coast Line, 253 So. 2d at 452; see also Charles W. Ehrhardt, Florida
Evidence § 803.18 (2014 ed.) (“If a statement is offered as substantive
evidence under [section 90.803(18)] it is not necessary to lay a foundation by
asking the individual who made the statement whether he or she did so.”).

Here, Ring Power sought to introduce
Mr. Condado’s statement — attributed to Mr. Condado and included in a properly
admitted business medical record — as evidence against Mr. Condado. It clearly
meets the statutory requirements of an admission.

Mr. Condado maintains that because
he challenged the trustworthiness of the EMS Report and his statement within
it, his statement was properly excluded. Provided that medical records,
including EMS records, otherwise meet the requirements of a business record
under section 90.803(6)(a), their trustworthiness is presumed. Nat’l Union
Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840, 842-43 (Fla. 1st
DCA 2000) (citing Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994)).
However, the party opposing the introduction of the medical records may rebut
that presumption. Love, 634 So. 2d at 160 (“[T]he burden is on the party
opposing the introduction to prove the untrustworthiness of the records.”).

Here, the EMS Report was introduced
into evidence by Mr. Condado; there was no opposition to its admission. Ring
Power points out the inconsistency in Mr. Condado’s position on his statement
within the EMS Report based on his introduction of the report: by introducing
the report Mr. Condado conceded the trustworthiness of the document and yet
maintains that a singular statement within it is not trustworthy.

Mr. Condado does not acknowledge
that inconsistency or the fact that the EMS Report was appropriately admitted
into evidence. Rather, Mr. Condado maintains that his statement is
untrustworthy because it refers to Mr. Condado as Ms. Rodriguez’s “husband”
when in fact Mr. Condado and Ms. Rodriguez are not married and because Mr.
Condado is not proficient in English. He also argues that his statement is
untrustworthy because the report does not mention that his vehicle rolled over
in the accident. As to the former argument, in his deposition and at trial Mr.
Condado admitted that he sometimes referred to Ms. Rodriguez as his wife and
that he may have done so on the date of the accident.

As to the latter argument, Mr.
Condado fails to recognize that his statement is admissible under a hearsay
exception separate and distinct from the business record exception; and the
admission exception has no trustworthiness component. While hearsay evidence is
generally excluded as “inherently untrustworthy because the party against whom
such evidence is offered has had no opportunity to test its veracity by
cross-examining the statement at the time the statement was made,” admissions
of a party opponent are an exception to the rule because “a party can hardly
complain that he had no opportunity to cross-examine himself at the time the
admissions were made.” Metropolitan Dade County v. Yearby, 580 So. 2d
186, 188 (Fla. 3d DCA 1991). That is, there is no inherent untrustworthiness in
the admission.

Although Mr. Condado’s statement was
not admissible as a statement for purposes of medical diagnosis or treatment or
as part of the business records exception, see Nat’l Union Fire,
754 So. 2d at 843, it was otherwise admissible as an admission, see State
Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 1007-08 (Fla. 4th DCA
2001) (“Ingalls’s statements to various physicians were admissible as
admissions of a party under section 90.803(18)(a). It was not necessary to also
qualify the statements under section 90.803(4), as statements for the purpose
of medical diagnosis or treatment.”). See also Charles W. Ehrhardt, Florida
Evidence § 803.18 (2014 ed.) (“The evidence [meeting the requirements of
section 90.803(18) as an admission] is admissible under the exception, and the
party who made the out-of-court statement may offer evidence to dispute its
truthfulness.”). Moreover, any objection Mr. Condado had to the trustworthiness
of the document as a whole — including those based on facts absent from the
report — was waived by his introduction of the report. Cf. Ohler v.
United States, 529 U.S. 753, 755 (2000) (“Generally, a party introducing
evidence cannot complain on appeal that the evidence was erroneously
admitted.”); Dorfman v. Schwabl, 777 So. 2d 427, 429-30 (Fla. 5th DCA
2000) (“We cannot find the court erred, when Dorfman raised the issue about
which he now complains.”).

It is apparent that the trial
court’s evidentiary rulings on the admissibility of Mr. Condado’s statement
were abuses of discretion. However, “[i]n order for an appealing party to be
successful in a challenge to a judgment based on ‘the improper admission or
rejection of evidence,’ the appellate court must conclude ‘after an examination
of the entire case . . . that the error[s] complained of ha[ve] resulted in a
miscarriage of justice.’ ” Fla. Inst. for Neurologic Rehab., Inc. v.
Marshall, 943 So. 2d 976, 979 (Fla. 2d DCA 2006) (quoting § 59.041, Fla.
Stat. (2006)). The court’s determination of whether there has been a
miscarriage of justice is based on a harmless error analysis. Special v. W.
Boca Med. Ctr., 160 So. 3d 1251, 1256-57 (Fla. 2014). “To test for harmless
error, the beneficiary of the error has the burden to prove that the error
complained of did not contribute to the verdict. Alternatively stated, the
beneficiary of the error must prove that there is no reasonable possibility
that the error contributed to the verdict.” Id. at 1256. Mr. Condado has
not established that the exclusion of his statement did not contribute to the
verdict. Mr. Condado’s statement was admissible, highly relevant, and not
unfairly prejudicial. Cf. Opsincs v. State, 185 So. 3d 654,
658-59 (Fla. 4th DCA 2016) (concluding that defendant’s statement after
accident had little probative value and was highly prejudicial); Kutner v.
Dep’t of Highway Safety & Motor Vehicles, 568 So. 2d 973, 974 (Fla. 3d
DCA 1990) (concluding that exclusion of evidence was proper where its probative
value was substantially outweighed by the danger of unfair prejudice given
other evidence presented).

The exclusion of Mr. Condado’s
statement was not harmless. There were two distinct theories advanced about the
cause of the accident. Mr. Quandt’s defense was that Mr. Condado caused the
accident by suddenly swerving. Mr. Condado’s statement in the EMS Report
expressly corroborated the defense and Mr. Quandt’s theory of liability. See
Phillips v. Ficarra, 618 So. 2d 312, 314 (Fla. 4th DCA 1993) (concluding
that error in excluding medical records was not harmless where records
contradicted defendant’s theory of the case). Whether Mr. Condado swerved into
Mr. Quandt’s path or Mr. Quandt was driving too fast and too closely were
issues for the jury to decide after weighing the evidence, including Mr.
Condado’s admission. See Seaboard Coast Line, 253 So. 2d at 452; Wilkinson,
181 So. 2d at 594. Accordingly, Ring Power is entitled to a new trial as to liability.

Although the error in excluding Mr.
Condado’s statement necessitates a new trial, we briefly comment on the error
in excluding Mr. Paton’s deposition. The record establishes that Ring Power
attempted to introduce and publish Mr. Paton’s deposition to the jury; however,
it is not clearly established in the record that the trial court ruled on Ring
Power’s request independent from its fourth request that the unredacted EMS
Report be introduced into evidence. We note that Mr. Paton was unavailable at the
time of trial and that Florida Rule of Civil Procedure 1.330(a)(1) permits the
use of a deposition “for any purpose permitted by the Florida Evidence Code.”

The final judgments are reversed.
The case is remanded for a new trial in accordance with this opinion.

Reversed and remanded. (KELLY and
CRENSHAW, JJ., Concur.)

__________________

1The trial
court entered two partial final judgments as to damages — one in favor of Mr.
Condado and one in favor of Ms. Rodriguez — and reserved jurisdiction to award
fees and costs. Ring Power appealed those judgments. The trial court
subsequently entered two costs judgments which were also appealed. This court
consolidated the appeals for all purposes.

2Initially,
the trial court ruled that Mr. Condado’s statement could be admitted through
the testimony of Mr. Paton but that it could not be admitted through the EMS
Report. This appears to be because the trial court believed the EMS Report
itself was inadmissible hearsay.

3Ring Power
contends that Mr. Condado stipulated to the admission of the EMS Report as a
business record under section 90.803(6) by agreeing that a records custodian
was unnecessary. See Kelly v. State Farm Mut. Auto. Ins., 720 So.
2d 1145, 1146 (Fla. 5th DCA 1998); Phillips v. Ficarra, 618 So. 2d 312,
313 (Fla. 4th DCA 1993). Mr. Condado disagrees. However, we need not consider
any stipulation because the admission of the EMS Report is not at issue on
appeal; moreover, Mr. Condado himself introduced the EMS Report into evidence
at trial.

4See, e.g., Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon,
754 So. 2d 840, 843-44 (Fla. 1st DCA 2000); Visconti v. Hollywood Rental
Serv., 580 So. 2d 197, 198 (Fla. 4th DCA 1991) (Garrett, J., concurring).

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