42
Fla. L. Weekly D793bTop of Form
Fla. L. Weekly D793bTop 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
— 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
RING
POWER CORPORATION; DIESEL CONSTRUCTION COMPANY; and MARK DAVID QUANDT,
Appellants, v. GERARDO CONDADO-PEREZ and NANCY RODRIGUEZ-VENTURA, Appellees.
2nd District. Case Nos. 2D16-35 & 2D16-397. Consolidated. Opinion filed
April 7, 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.
POWER CORPORATION; DIESEL CONSTRUCTION COMPANY; and MARK DAVID QUANDT,
Appellants, v. GERARDO CONDADO-PEREZ and NANCY RODRIGUEZ-VENTURA, Appellees.
2nd District. Case Nos. 2D16-35 & 2D16-397. Consolidated. Opinion filed
April 7, 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.
(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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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]?
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]?
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 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.
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.
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.
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
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.”).
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.
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 (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.”).
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 (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.
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.
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.
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.”).
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).
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
and mutually exclusive 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.
exclusion of Mr. Condado’s statement was not harmless. There were two distinct
and mutually exclusive 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.
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 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 as to damages and costs are reversed. The case is remanded for
a new trial in accordance with this opinion.
final judgments as to damages and costs are reversed. The case is remanded for
a new trial in accordance with this opinion.
Reversed
and remanded. (KELLY and CRENSHAW, JJ., Concur.)
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.
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.
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.
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).
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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