42
Fla. L. Weekly D2655aTop of Form

Torts
— Automobile accident — Evidence — Trial court erred by allowing plaintiff
to question defendant’s corporate representative about matters not related to
damages where liability was admitted and was not an issue in case — It was
also improper for plaintiff’s counsel to refer to “guilt” or “innocence” in
civil trial on negligence

TT OF INDIAN RIVER, INC. D/B/A
MERCEDES-BENZ OF MELBOURNE AND JAMES C. DORMAN, Appellants, v. HEIDI FORTSON,
Appellee. 5th District. Case No. 5D16-2001.Opinion filed December 15, 2017.
Appeal from the Circuit Court for Brevard County, George Maxwell, III, Judge.
Counsel: Richard A. Sherman, Sr., and James W. Sherman, of Richard A. Sherman,
P.A., Fort Lauderdale, and Chris Killer and Todd Bohnenstiehl, of Law Offices
of J. Christopher Norris, Orlando, for Appellants. Thomas J. Seider and Celene
H. Humphries, of Brannock & Humphries, Tampa, and Mark S. Roman and Morgan
L. Gaynor, of Roman & Gaynor, Clearwater, and Douglas R. Beam, of Douglas
R. Beam, P.A., Melbourne, for Appellee.

(PER CURIAM.) Appellants, TT of
Indian River, Inc. (d/b/a Mercedes-Benz of Melbourne) and James C. Dorman,
appeal a final judgment rendered after a jury verdict awarding damages to
Appellee due to an automobile accident. We find the trial court erred when it
allowed Appellee to question Mercedes-Benz’s corporate representative about the
automobile accident even though liability was not at issue. We reverse on that
ground, and need not reach the remaining issues raised by Appellants.

At the start of trial, Appellants
moved to quash a subpoena of the corporate representative, noting Appellants’
stipulation to liability, and that the corporate representative “has no
personal knowledge of anything” including the damages issues. As Appellants
highlight, Appellee’s counsel refused to disclose any basis for calling the
corporate representative, stating that he did not want to reveal “trial
strategy.”

The trial court denied the motion to
quash and allowed Appellee to call the corporate representative. During direct
examination, Appellee’s counsel asked numerous questions that were not related
to damages, but instead tended to denigrate Mercedes-Benz and inflame the jury,
including but not limited to, asking the corporate representative: (1) if
“Mercedes-Benz of Melbourne admits guilt”; (2) after establishing that the
accident occurred in 2012, “isn’t it true that until last week, in 2016, that
that was the first time Mercedes-Benz of Melbourne admitted guilt”; (3) “even
though Mercedes-Benz of Melbourne is admitting guilt for negligence . . . we
just heard that Mercedes-Benz’s defense is that [Appellee] is making up her
injuries”; (4) “[n]ow I believe your testimony is that it’s your position that
Mercedes-Benz of Melbourne has admitted guilt as far as negligence, correct”;
(5) “[s]o Mercedes-Benz of Melbourne is totally responsible for this motor
vehicle crash”; and Appellee “is totally innocent as far as negligence”; (6)
about her designation as the person with the most knowledge of the accident
investigation even though she “did that without . . . doing any investigation
into this crash at all”; (7) if her accident investigation was limited to
reviewing the accident report and questioning, “[t]hat was it . . . on behalf
of Mercedes-Benz of Melbourne, as the risk manager, that is the only
investigation you did into a major crash”; (8) “[a]nd so we have a full
picture, you answered questions that we’ve relied on in this lawsuit on behalf
of Mercedes-Benz of Melbourne when you did not work for Mercedes-Benz of
Melbourne”; and (9) “[i]n fact, you’re only here today because we subpoenaed
you; is that correct?”

At closing argument, Appellee’s
counsel then highlighted the testimony of the corporate representative when he
asked the jury:

You know,
they bring someone who is identified as in risk management with the Defendant,
and she says that all she did to investigate was look at an accident report.
And then we find out that she didn’t even work for them. What does that mean?

“When a defendant admits the entire
responsibility for an accident and only the amount of damages is at issue,
evidence regarding liability is irrelevant and prejudicial.” Swanson v.
Robles, 128 So. 3d 915, 918 (Fla. 2d DCA 2013) (citing Metro. Dade Cty.
v. Cox, 453 So. 2d 1171, 1172-73 (Fla. 3d DCA 1984) (citing Barton v.
Miami Transit Co., 42 So. 2d 849 (Fla. 1949))). Moreover, as this court has
recognized, it is improper to refer to “guilt” or “innocence” at a civil trial
on negligence. See Irizarry v. Moore, 84 So. 3d 1069, 1071 (Fla. 5th DCA
2012).

We cannot agree with Appellee that
this error was harmless. The great majority of Appellee’s direct examination of
the corporate representative was not only entirely irrelevant to damages, but
was also formulated with the inescapable end of inflaming the jury. For
instance, Appellee’s counsel inexplicably continued using the term “guilt” to
describe Appellants’ stipulation to liability even after the trial court
sustained an objection to the use of that term, and described his own client’s
conduct as “innocent.” The error was then compounded by counsel’s closing
argument where he not only reminded the jury of the corporate representative’s
testimony, but also asked a rhetorical question which was consistent with the
improper themes of direct examination implying collusion, indifference, or
misconduct by Appellants. As such, we reverse for a new trial on damages.

REVERSED and REMANDED. (COHEN, C.J.,
EISNAUGLE, J., and EGAN, R.J., Associate Judge, concur.)

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