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November 6, 2015 by admin

Torts — Automobile accident — Evidence — Trial court erred in excluding evidence that plaintiff was involved in a subsequent accident in which his golf cart collided with an automobile, that plaintiff was involved in a physical altercation with police at scene of that accident, and that plaintiff failed to disclose the golf cart incident and altercation to his chiropractor when he returned to him after the incident and altercation

40
Fla. L. Weekly D2485c
Top of Form

Torts
— Automobile accident — Evidence — Trial court erred in excluding evidence
that plaintiff was involved in a subsequent accident in which his golf cart
collided with an automobile, that plaintiff was involved in a physical
altercation with police at scene of that accident, and that plaintiff failed to
disclose the golf cart incident and altercation to his chiropractor when he
returned to him after the incident and altercation — Possibility of unfair
prejudice did not substantially outweigh probative value of evidence —
Defendant is entitled to new trial

ANTHONY MANIGLIA, Appellant, vs. DANIEL CARPENTER, Appellee.
3rd District. Case No. 3D14-989. L.T. Case No. 10-53225. Opinion filed November
4, 2015. An appeal from the Circuit Court for Miami Dade County, Sara I. Zabel,
Judge. Counsel: Kubicki Draper and Caryn L. Bellus and Bretton C. Albrecht, for
appellant. David B. Pakula (Southwest Ranches); Ellis, Ged & Bodden (Boca
Raton), for appellee.

(Before WELLS, SALTER and FERNANDEZ, JJ.)

(SALTER, Judge.) Anthony Maniglia appeals a final judgment
awarding damages to Daniel Carpenter following a September 2009 automobile
collision. Maniglia seeks a reversal and remand for a new trial based on the
trial court’s exclusion of evidence relating to an incident involving Carpenter
that occurred a month after the accident. We conclude that the proffered
evidence of the incident was significantly probative and outweighed any alleged
prejudice. Applying the test for harmless error in a civil case, see Special
v. W. Boca Med. Ctr.,
160 So. 3d 1251 (Fla. 2014), we conclude that
Carpenter has failed to prove that the error did not contribute to the verdict
in his favor. We thus reverse and remand for a new trial.

The Accident and Aftermath

In September 2009, automobiles driven by Maniglia and
Carpenter collided while Maniglia was changing lanes on I-95 at night. The
collision damaged the right rear area of Maniglia’s vehicle and the left front
of Carpenter’s auto. Maniglia and his brother (a passenger in Maniglia’s
vehicle) maintained that it was only a bump; Carpenter maintained that it was a
severe sideswiping.

The day after the accident Carpenter visited Dr. Napoli, a
chiropractor, and complained about right-side neck and back pain. Dr. Napoli
later testified that x-rays taken that day showed no signs of acute injury,
that they revealed disc narrowing (which he described as “normal wear and
tear”), and that he placed no work restrictions on Carpenter.

The Golf Cart Incident

In pretrial discovery in his personal injury suit against
Maniglia, Carpenter initially denied that he had been involved in any
subsequent accidents. Later investigation revealed, however, that Carpenter was
involved in an unrelated accident and physical altercation less than a month
after the car accident involving Maniglia. In October 2009, Carpenter was
playing in a golf tournament. In the course of the tournament, Carpenter drove
a golf cart onto a public road, ran a red light, and collided with a car. At
impact, Carpenter fell from the golf cart and onto the street.

Carpenter got into a physical altercation with the police at
the scene, which included fighting, kicking, and wrestling on the ground. There
was evidence that Carpenter was intoxicated; that he did not have permission to
use the golf cart; that he yelled profanity at the police and kicked both feet
against the rear passenger window of the police car; and that he was arrested
on the scene for battery on a law enforcement officer.

Additional evidence proffered by Maniglia at trial would
have shown that Carpenter failed to disclose the golf cart incident and altercation
to Dr. Napoli when he returned to Dr. Napoli less than two weeks later.
Maniglia also proffered evidence that the magnetic resonance images (MRIs) of
Carpenter, relied upon by Carpenter’s surgeon when he recommended surgery, were
not taken until after the golf cart incident.

The Motion in Limine and the Evidence at Trial

Carpenter moved before trial to exclude all evidence
relating to the October 2009 golf cart incident on the grounds that its
prejudicial effect substantially outweighed its probative value under section
90.403, Florida Statutes (2015). Carpenter argued that irrelevant, but highly
prejudicial facts — such as the intoxication, profanity, and struggle with law
enforcement personnel — were too interwoven with any facts relating to the golf
cart collision and Carpenter’s fall from the cart to the pavement to permit a
“sanitized version” to be allowed. The trial court granted the motion.

At trial, however, the court allowed the jury to hear that
Carpenter played in the golf tournament less than a month after the accident
with Maniglia, and that Carpenter had played “bumper cars” with the golf cart
at the first tee. The court also allowed limited evidence that Carpenter was
intoxicated at the golf tournament, which Carpenter had relied on to explain
his ability to play golf following his alleged injuries.

The jury did not hear the complete details of the golf cart
incident, however, including Carpenter’s crash with an automobile, fall onto
the pavement, and struggle with law enforcement personnel. The jury also did
not hear proffered evidence that Carpenter failed to tell his chiropractor, Dr.
Napoli, about the golf cart incident and struggle when Carpenter visited him
less than two weeks after those events occurred.

The jury returned a verdict awarding Carpenter $182,429.39.
The court entered a final judgment in the case. Maniglia’s motion for a new
trial was denied, and this appeal followed.

Analysis

We have described the admissibility of “prejudicial” facts
in these terms:

“[m]ost
evidence that is admitted will be prejudicial or damaging to the party against
whom it is offered.” Charles W. Ehrhardt, [Florida Evidence § 403.1
(2007)] at 183. The question under the statute is not prejudice but instead,
unfair prejudice: whether the “probative value is substantially outweighed by
the danger of unfair prejudice.” § 90.403, Fla. Stat. (2005) (emphasis
added).

State v. Williams, 992 So. 2d 330, 334 (Fla. 3d
DCA 2008).

In the present case, the golf cart incident included facts
that addressed both Carpenter’s credibility and his proof of causation. The
possibility of “unfair” prejudice did not “substantially” outweigh the
probative value of that evidence. Had the motion been denied and the proffered
evidence introduced, Carpenter’s failure to mention the recent golf cart
incident to his chiropractor may have affected the jury’s evaluation of
Carpenter’s credibility, and the particulars of his fall and struggle with
police would have been an adequate basis for jury instructions on intervening
causes and subsequent injuries. See Fla. Std. Jury Instr. (Civil)
401.12(c), 505.5(b).

As the beneficiary of this erroneous exclusion of admissible
evidence, Carpenter is required “to prove that the error complained of did not
contribute to the verdict,” alternatively described by the Supreme Court of
Florida as proof that “there is no reasonable possibility that the error
complained of contributed to the verdict.” Special, 160 So. 3d at 1265.
Carpenter and the record before us have not satisfied this requirement, with
the result that the final judgment and order denying new trial must be
reversed.

Reversed and remanded for a new trial.

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