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Fla. L. Weekly D1666aTop of Form
Fla. L. Weekly D1666aTop of Form
Torts
— Motorcycle accident — Evidence — Accident report privilege — Trial court
erred in concluding that accident report privilege applied to statement made by
witness to investigating officer where witness was herself involved in a fender
bender that was causally connected to motorcycle accident — Witness’s Fifth
Amendment rights were not implicated in her statements to officer who was
investigating only the motorcycle accident, not witness’s minor fender bender,
which had been investigated and memorialized in a separate accident report
authored by a different officer — Alcohol consumption by plaintiffs — Trial
court abused its discretion by excluding evidence of plaintiffs’ pre-accident
alcohol consumption on ground that the potential prejudice to plaintiffs
outweighed probative value of proffered evidence — Evidence of motorcyclists’
alcohol consumption on evening of accident was material to issue of comparative
negligence, was not speculative, and properly raised issue as to whether
alcohol consumption was contributing factor in the accident — On remand,
defendant to be permitted to pursue defense under section 768.36, which
precludes plaintiff who was under influence of alcohol or drugs from recovering
damages if normal faculties were impaired and plaintiff was more than 50
percent at fault — Trial court abused its discretion by excluding evidence that
motorcyclist who was transporting a passenger had temporary motorcycle license
that did not allow him to carry passengers — Motorcycle license violation was
relevant to case at hand under circumstances — New trial required — Court
notes that evidence of alcohol consumption and license violation, although
admissible, must be demonstrated to relate to relevant issues and not be used
solely to create prejudice in minds of jurors
— Motorcycle accident — Evidence — Accident report privilege — Trial court
erred in concluding that accident report privilege applied to statement made by
witness to investigating officer where witness was herself involved in a fender
bender that was causally connected to motorcycle accident — Witness’s Fifth
Amendment rights were not implicated in her statements to officer who was
investigating only the motorcycle accident, not witness’s minor fender bender,
which had been investigated and memorialized in a separate accident report
authored by a different officer — Alcohol consumption by plaintiffs — Trial
court abused its discretion by excluding evidence of plaintiffs’ pre-accident
alcohol consumption on ground that the potential prejudice to plaintiffs
outweighed probative value of proffered evidence — Evidence of motorcyclists’
alcohol consumption on evening of accident was material to issue of comparative
negligence, was not speculative, and properly raised issue as to whether
alcohol consumption was contributing factor in the accident — On remand,
defendant to be permitted to pursue defense under section 768.36, which
precludes plaintiff who was under influence of alcohol or drugs from recovering
damages if normal faculties were impaired and plaintiff was more than 50
percent at fault — Trial court abused its discretion by excluding evidence that
motorcyclist who was transporting a passenger had temporary motorcycle license
that did not allow him to carry passengers — Motorcycle license violation was
relevant to case at hand under circumstances — New trial required — Court
notes that evidence of alcohol consumption and license violation, although
admissible, must be demonstrated to relate to relevant issues and not be used
solely to create prejudice in minds of jurors
KEVIN STEWART, Appellant, v. DEAN D.
DRALEAUS, CHRISTOPHER REAGLE, and ROBIN VINCENT, Appellees. 4th District. Case
Nos. 4D15-2320, 4D15-2321 and 4D15-2322. July 26, 2017. Consolidated appeals
and cross-appeal from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; James Midelis, Senior Judge; L.T. Case Nos. 562007CA001978,
562007CA003717 and 562008CA000556. Counsel: Diane H. Tutt of Conroy Simberg,
Hollywood, for appellant. Bard D. Rockenbach of Burlington & Rockenbach,
P.A., West Palm Beach, and William Zoeller of Schuler, Halvorson, Weisser &
Zoeller, P.A., West Palm Beach, for appellee.
DRALEAUS, CHRISTOPHER REAGLE, and ROBIN VINCENT, Appellees. 4th District. Case
Nos. 4D15-2320, 4D15-2321 and 4D15-2322. July 26, 2017. Consolidated appeals
and cross-appeal from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; James Midelis, Senior Judge; L.T. Case Nos. 562007CA001978,
562007CA003717 and 562008CA000556. Counsel: Diane H. Tutt of Conroy Simberg,
Hollywood, for appellant. Bard D. Rockenbach of Burlington & Rockenbach,
P.A., West Palm Beach, and William Zoeller of Schuler, Halvorson, Weisser &
Zoeller, P.A., West Palm Beach, for appellee.
(CIKLIN, J.) Kevin Stewart, the
defendant below, timely appeals a final judgment in a personal injury action
entered in favor of the three plaintiffs, Robin Vincent, Christopher Reagle,
and Dean Draleaus. The action was based on a motorcycle accident in which the
defendant is alleged to have hit the plaintiffs’ motorcycles. The defendant
argues the trial court erred in precluding three types of evidence: a witness’s
statement to an investigating police officer, alcohol consumption by the
plaintiffs, and a motorcycle license violation by one of the plaintiffs. We
agree on all three points, and we reverse and remand for a new trial.
defendant below, timely appeals a final judgment in a personal injury action
entered in favor of the three plaintiffs, Robin Vincent, Christopher Reagle,
and Dean Draleaus. The action was based on a motorcycle accident in which the
defendant is alleged to have hit the plaintiffs’ motorcycles. The defendant
argues the trial court erred in precluding three types of evidence: a witness’s
statement to an investigating police officer, alcohol consumption by the
plaintiffs, and a motorcycle license violation by one of the plaintiffs. We
agree on all three points, and we reverse and remand for a new trial.
I.
Facts
Facts
On the evening of the motorcycle
accident, which occurred in 2006, the defendant was driving a Chevrolet Camaro.
Draleaus and Reagle were each driving a motorcycle and Vincent was Reagle’s
passenger. At that time, Reagle had a temporary motorcycle license that did not
permit him to carry a passenger. Prior to the accident, the plaintiffs stopped
at a restaurant and then at a bar. They were heading home when the accident
occurred around 11:18 p.m.
accident, which occurred in 2006, the defendant was driving a Chevrolet Camaro.
Draleaus and Reagle were each driving a motorcycle and Vincent was Reagle’s
passenger. At that time, Reagle had a temporary motorcycle license that did not
permit him to carry a passenger. Prior to the accident, the plaintiffs stopped
at a restaurant and then at a bar. They were heading home when the accident
occurred around 11:18 p.m.
In the proceedings below, liability
was hotly contested and the defendant alleged comparative negligence. According
to the plaintiffs’ theory of the case, the defendant revved his engine at them
and tried to race them. After pacing the motorcycles for a distance and
swerving into their lane twice, the defendant hit Reagle’s motorcycle (upon
which Vincent was a passenger), which then ran into Draleaus’s motorcycle, and
then drove away. The plaintiffs survived the accident, but underwent medical
treatment for significant injuries.
was hotly contested and the defendant alleged comparative negligence. According
to the plaintiffs’ theory of the case, the defendant revved his engine at them
and tried to race them. After pacing the motorcycles for a distance and
swerving into their lane twice, the defendant hit Reagle’s motorcycle (upon
which Vincent was a passenger), which then ran into Draleaus’s motorcycle, and
then drove away. The plaintiffs survived the accident, but underwent medical
treatment for significant injuries.
The defendant’s version of events
was dramatically different. The defendant admitted to revving his engine in
response to the motorcycles, but he denied exceeding the speed limit or racing
or hitting the motorcycles. He testified that he saw Reagle attempt to turn
right but instead turn directly into Draleaus’s path, which he opined, caused
the motorcycles to collide and hit a curb and a telephone pole. The defendant
said he pulled over and got out of his car, but then left after seeing that
other people had stopped to render aid.
was dramatically different. The defendant admitted to revving his engine in
response to the motorcycles, but he denied exceeding the speed limit or racing
or hitting the motorcycles. He testified that he saw Reagle attempt to turn
right but instead turn directly into Draleaus’s path, which he opined, caused
the motorcycles to collide and hit a curb and a telephone pole. The defendant
said he pulled over and got out of his car, but then left after seeing that
other people had stopped to render aid.
The independent witness testimony
presented at trial was similarly inconsistent. One witness testified that the
motorcycles and the defendant’s Camaro were traveling at one hundred miles per
hour and that the accident occurred while the vehicle and the two motorcycles
were close to each another. Another witness, who was riding with the
aforementioned witness, estimated that the vehicles were traveling fifty-five
to sixty miles per hour and stated that the Camaro was nowhere near the
motorcycles when one of the motorcycle’s wheels began to wobble and crash.
presented at trial was similarly inconsistent. One witness testified that the
motorcycles and the defendant’s Camaro were traveling at one hundred miles per
hour and that the accident occurred while the vehicle and the two motorcycles
were close to each another. Another witness, who was riding with the
aforementioned witness, estimated that the vehicles were traveling fifty-five
to sixty miles per hour and stated that the Camaro was nowhere near the
motorcycles when one of the motorcycle’s wheels began to wobble and crash.
Yet another witness (“minor accident
witness”) was involved in a fender bender shortly after the subject motorcycle
accident. According to her deposition testimony, which was admitted at trial,
she did not see the motorcycle accident because a truck was traveling in front
of her, but she saw the motorcycles speeding and weaving in and out of traffic
beforehand. When the truck turned onto an intersecting street, she saw three
people laying on the road and on the sidewalk. She had to swerve to avoid them,
at which point she hit a car that was pulled over to render aid to the
plaintiffs.
witness”) was involved in a fender bender shortly after the subject motorcycle
accident. According to her deposition testimony, which was admitted at trial,
she did not see the motorcycle accident because a truck was traveling in front
of her, but she saw the motorcycles speeding and weaving in and out of traffic
beforehand. When the truck turned onto an intersecting street, she saw three
people laying on the road and on the sidewalk. She had to swerve to avoid them,
at which point she hit a car that was pulled over to render aid to the
plaintiffs.
Prior to trial, the parties moved in
limine to obtain a ruling on the admissibility of a prior inconsistent
statement of the minor accident witness involved in her own accident, to the
investigating law enforcement officer. In that statement she said she saw the
motorcycle accident occur, and specifically that she saw one motorcycle move
into the other motorcycle’s lane and make contact with it. The parties also
sought pre-trial rulings on the admissibility of evidence that the plaintiffs
were drinking before the accident and that Reagle was violating a license
restriction at the time of the accident by carrying a passenger. The trial
court excluded all of the evidence. The jury ultimately found the defendant 55%
at fault and Reagle 45% at fault and the trial court entered final judgment
accordingly.
limine to obtain a ruling on the admissibility of a prior inconsistent
statement of the minor accident witness involved in her own accident, to the
investigating law enforcement officer. In that statement she said she saw the
motorcycle accident occur, and specifically that she saw one motorcycle move
into the other motorcycle’s lane and make contact with it. The parties also
sought pre-trial rulings on the admissibility of evidence that the plaintiffs
were drinking before the accident and that Reagle was violating a license
restriction at the time of the accident by carrying a passenger. The trial
court excluded all of the evidence. The jury ultimately found the defendant 55%
at fault and Reagle 45% at fault and the trial court entered final judgment
accordingly.
II.
Analysis
Analysis
On appeal, the defendant argues that
the evidentiary rulings were incorrect, since the excluded evidence was
relevant, probative, and supported by expert testimony where necessary. We
agree.
the evidentiary rulings were incorrect, since the excluded evidence was
relevant, probative, and supported by expert testimony where necessary. We
agree.
A. Accident Report Privilege
First, we address the prior
inconsistent statement of the witness who had been involved in her own separate
and minor accident. The trial court excluded this testimony and evidence based
on its interpretation of the accident report privilege. Therefore, this is a
question of law subject to de novo review. See Sottilaro v. Figueroa, 86
So. 3d 505, 507-08 (Fla. 2d DCA 2012).
inconsistent statement of the witness who had been involved in her own separate
and minor accident. The trial court excluded this testimony and evidence based
on its interpretation of the accident report privilege. Therefore, this is a
question of law subject to de novo review. See Sottilaro v. Figueroa, 86
So. 3d 505, 507-08 (Fla. 2d DCA 2012).
The accident report privilege serves
to exclude from evidence statements made by a driver involved in an accident to
a police officer for the purpose of creating a crash report for that accident. McTevia
v. Schrag, 446 So. 2d 1183, 1184 (Fla. 4th DCA 1984). The privilege derives
from section 316.066, Florida Statutes (2006), which under certain
circumstances requires persons involved in an accident to provide a report to
law enforcement:
to exclude from evidence statements made by a driver involved in an accident to
a police officer for the purpose of creating a crash report for that accident. McTevia
v. Schrag, 446 So. 2d 1183, 1184 (Fla. 4th DCA 1984). The privilege derives
from section 316.066, Florida Statutes (2006), which under certain
circumstances requires persons involved in an accident to provide a report to
law enforcement:
(1) The driver of a vehicle which is in any manner involved
in a crash resulting in bodily injury to or death of any person or damage to
any vehicle or other property in an apparent amount of at least $500 shall,
within 10 days after the crash, forward a written report of such crash to the
department or traffic records center. However, when the investigating officer
has made a written report of the crash pursuant to paragraph (3)(a), no written
report need be forwarded to the department or traffic records center by the
driver.
in a crash resulting in bodily injury to or death of any person or damage to
any vehicle or other property in an apparent amount of at least $500 shall,
within 10 days after the crash, forward a written report of such crash to the
department or traffic records center. However, when the investigating officer
has made a written report of the crash pursuant to paragraph (3)(a), no written
report need be forwarded to the department or traffic records center by the
driver.
. . . .
(3)(a)
Every law enforcement officer who in the regular course of duty investigates a
motor vehicle crash:
Every law enforcement officer who in the regular course of duty investigates a
motor vehicle crash:
1. Which
crash resulted in death or personal injury shall, within 10 days after
completing the investigation, forward a written report of the crash to the
department or traffic records center.
crash resulted in death or personal injury shall, within 10 days after
completing the investigation, forward a written report of the crash to the
department or traffic records center.
. . . .
(4) 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. No such report or
statement shall be used as evidence in any trial, civil or criminal. However,
subject to the applicable rules of evidence, a law enforcement officer at a
criminal trial may testify as to any statement made to the officer by the
person involved in the crash if that person’s privilege against
self-incrimination is not violated. . . .
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. No such report or
statement shall be used as evidence in any trial, civil or criminal. However,
subject to the applicable rules of evidence, a law enforcement officer at a
criminal trial may testify as to any statement made to the officer by the
person involved in the crash if that person’s privilege against
self-incrimination is not violated. . . .
(Emphasis added).
“[T]he purpose of the statute is to
clothe with statutory immunity only such statements and communications as the
driver, owner, or occupant of a vehicle is compelled to make in order to comply
with his or her statutory duty . . . .” Brackin v. Boles, 452 So. 2d
540, 544 (Fla. 1984). The assertion of the privilege is not limited to the
declarant; it “extends to all persons within its ambit, those ‘involved’ in the
accident[.]” Hoctor ex rel. Hoctor v. Tucker, 432 So. 2d 1352, 1353
(Fla. 5th DCA 1983).
clothe with statutory immunity only such statements and communications as the
driver, owner, or occupant of a vehicle is compelled to make in order to comply
with his or her statutory duty . . . .” Brackin v. Boles, 452 So. 2d
540, 544 (Fla. 1984). The assertion of the privilege is not limited to the
declarant; it “extends to all persons within its ambit, those ‘involved’ in the
accident[.]” Hoctor ex rel. Hoctor v. Tucker, 432 So. 2d 1352, 1353
(Fla. 5th DCA 1983).
This immunity, however, is not
extended to witnesses as they have no obligation to provide such a statement. McTevia,
446 So. 2d at 1184-85. In McTevia, the McTevias were involved in a car
accident with the defendant, Schrag. Id. at 1184. At the scene of the
accident, the McTevias’ friend, Epstein, told the investigating officer that he
was following the McTevias in his car but did not witness the accident. Id. Two
weeks later he went to the police station and told officers he had lied
previously, that he saw the accident, and that Schrag was on the wrong side of
the road at the time of the accident. Id.
extended to witnesses as they have no obligation to provide such a statement. McTevia,
446 So. 2d at 1184-85. In McTevia, the McTevias were involved in a car
accident with the defendant, Schrag. Id. at 1184. At the scene of the
accident, the McTevias’ friend, Epstein, told the investigating officer that he
was following the McTevias in his car but did not witness the accident. Id. Two
weeks later he went to the police station and told officers he had lied
previously, that he saw the accident, and that Schrag was on the wrong side of
the road at the time of the accident. Id.
At trial, the McTevias moved to
preclude Epstein’s on-scene statement on the basis of the accident report
privilege under section 316.066(4). Id. The trial court ultimately ruled
the statement to be admissible. Id. This court affirmed, explaining:
preclude Epstein’s on-scene statement on the basis of the accident report
privilege under section 316.066(4). Id. The trial court ultimately ruled
the statement to be admissible. Id. This court affirmed, explaining:
This
privilege inures only to those required to make the report. It does not apply
to statements of other witnesses or persons who may volunteer information to
the investigating officer. The privilege is constitutionally mandated because
the statutes require a report under penalty of law and in certain instances the
report could otherwise be in derogation of one’s Fifth Amendment rights. From
the foregoing lessons it appears that Epstein was not required by law to report
to the investigating officer; he was therefore not involved in the accident
within the meaning of Section 316.066(4), Florida Statutes (1981).
privilege inures only to those required to make the report. It does not apply
to statements of other witnesses or persons who may volunteer information to
the investigating officer. The privilege is constitutionally mandated because
the statutes require a report under penalty of law and in certain instances the
report could otherwise be in derogation of one’s Fifth Amendment rights. From
the foregoing lessons it appears that Epstein was not required by law to report
to the investigating officer; he was therefore not involved in the accident
within the meaning of Section 316.066(4), Florida Statutes (1981).
Id. at 1184-85 (internal citations omitted); see also
Sottilaro, 86 So. 3d at 509-11 (where witnesses told officer that decedent
was looking down at his phone and texting while crossing the highway, the
witnesses’ statements were not inadmissible on the basis of the accident report
privilege because the witnesses were not involved in the accident and were not
required to make the statements); S.G.K. v. State, 657 So. 2d 1246, 1248
(Fla. 1st DCA 1995) (noting that section 316.066 does not require witnesses to
stay on the scene or report to officers). This court has further explained,
“The test to be applied in determining whether the accident report privilege is
applicable is whether the privilege against self-incrimination was violated by requiring
the person involved in the accident to answer the questions posed.” Evans v.
Hamilton, 885 So. 2d 950, 950-51 (Fla. 4th DCA 2004).
Sottilaro, 86 So. 3d at 509-11 (where witnesses told officer that decedent
was looking down at his phone and texting while crossing the highway, the
witnesses’ statements were not inadmissible on the basis of the accident report
privilege because the witnesses were not involved in the accident and were not
required to make the statements); S.G.K. v. State, 657 So. 2d 1246, 1248
(Fla. 1st DCA 1995) (noting that section 316.066 does not require witnesses to
stay on the scene or report to officers). This court has further explained,
“The test to be applied in determining whether the accident report privilege is
applicable is whether the privilege against self-incrimination was violated by requiring
the person involved in the accident to answer the questions posed.” Evans v.
Hamilton, 885 So. 2d 950, 950-51 (Fla. 4th DCA 2004).
In the proceedings below, the trial
court determined that the fender bender and the motorcycle accident were not
separate accidents, reasoning that the collisions were causally connected and
were a “continuous chain of events.” Since the minor accident witness was a
driver of a vehicle “involved in an accident,” the trial court reasoned that
this privilege applied.
court determined that the fender bender and the motorcycle accident were not
separate accidents, reasoning that the collisions were causally connected and
were a “continuous chain of events.” Since the minor accident witness was a
driver of a vehicle “involved in an accident,” the trial court reasoned that
this privilege applied.
We find this conclusion to be
erroneous. While it is true that the accidents were, in some fashion, related,
the accidents were separate. Neither the minor accident witness nor the vehicle
she struck collided with the plaintiffs, their motorcycles, or any of the
debris from their accident. Further, the investigating officer who obtained the
minor accident witness’s statement indicated in his proffered testimony that he
was investigating only the motorcycle accident, not the minor accident
witness’s fender bender, and that the fender bender was memorialized in a
separate accident report authored by a different officer. Any statements made
to the other officer regarding the minor accident witness’s own accident are
privileged, but her Fifth Amendment rights were not implicated in her
statements to the officer about the motorcycle accident. Consequently, the
trial court erred in excluding evidence of her statements.
erroneous. While it is true that the accidents were, in some fashion, related,
the accidents were separate. Neither the minor accident witness nor the vehicle
she struck collided with the plaintiffs, their motorcycles, or any of the
debris from their accident. Further, the investigating officer who obtained the
minor accident witness’s statement indicated in his proffered testimony that he
was investigating only the motorcycle accident, not the minor accident
witness’s fender bender, and that the fender bender was memorialized in a
separate accident report authored by a different officer. Any statements made
to the other officer regarding the minor accident witness’s own accident are
privileged, but her Fifth Amendment rights were not implicated in her
statements to the officer about the motorcycle accident. Consequently, the
trial court erred in excluding evidence of her statements.
B. Evidence of Alcohol Consumption
Second, we address the trial court’s
ruling excluding evidence of the plaintiffs’ pre-accident alcohol consumption.
ruling excluding evidence of the plaintiffs’ pre-accident alcohol consumption.
The evidence the defendant sought to
introduce included (1) admissions by two of the plaintiffs that they had been
drinking prior to the incident (the third incurred a head injury that left him
unable to recall most of the day’s events), (2) testimony of treating medical
personnel and witnesses who smelled alcohol on the plaintiffs, and (3)
testimony of an expert witness that even just one or two drinks may
significantly impair perception and reaction in the operation of a motorcycle.
The plaintiffs countered that evidence of impairment was speculative, as Reagle
and Draleaus’s blood had been drawn at 4:00 A.M. the morning after the accident
and no alcohol was detected, nor was there any evidence of impairment such as
slurred speech, bloodshot eyes, or unsteadiness on feet. The trial court
focused on the fact that there was no evidence of retrograde extrapolation and
that the blood alcohol tests were negative. It excluded the evidence,
concluding that the potential prejudice to the plaintiffs outweighed the
probative value of the proffered evidence.
introduce included (1) admissions by two of the plaintiffs that they had been
drinking prior to the incident (the third incurred a head injury that left him
unable to recall most of the day’s events), (2) testimony of treating medical
personnel and witnesses who smelled alcohol on the plaintiffs, and (3)
testimony of an expert witness that even just one or two drinks may
significantly impair perception and reaction in the operation of a motorcycle.
The plaintiffs countered that evidence of impairment was speculative, as Reagle
and Draleaus’s blood had been drawn at 4:00 A.M. the morning after the accident
and no alcohol was detected, nor was there any evidence of impairment such as
slurred speech, bloodshot eyes, or unsteadiness on feet. The trial court
focused on the fact that there was no evidence of retrograde extrapolation and
that the blood alcohol tests were negative. It excluded the evidence,
concluding that the potential prejudice to the plaintiffs outweighed the
probative value of the proffered evidence.
We review the trial court’s
determination on the admissibility of the evidence for an abuse of discretion,
which discretion is limited by the rules of evidence. Pantoja v. State,
59 So. 3d 1092, 1095 (Fla. 2011).
determination on the admissibility of the evidence for an abuse of discretion,
which discretion is limited by the rules of evidence. Pantoja v. State,
59 So. 3d 1092, 1095 (Fla. 2011).
Relevant evidence is evidence
tending to prove or disprove a material fact and is generally admissible. §§
90.401, 90.402, Fla. Stat. (2013). “Relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation of
cumulative evidence.” § 90.403, Fla. Stat. (2013).
tending to prove or disprove a material fact and is generally admissible. §§
90.401, 90.402, Fla. Stat. (2013). “Relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation of
cumulative evidence.” § 90.403, Fla. Stat. (2013).
In
weighing the probative value against the unfair prejudice, it is proper for the
court to consider the need for the evidence; the tendency of the evidence to
suggest an improper basis to the jury for resolving the matter, e.g., an
emotional basis; the chain of inference necessary to establish the material
fact; and the effectiveness of a limiting instruction.
weighing the probative value against the unfair prejudice, it is proper for the
court to consider the need for the evidence; the tendency of the evidence to
suggest an improper basis to the jury for resolving the matter, e.g., an
emotional basis; the chain of inference necessary to establish the material
fact; and the effectiveness of a limiting instruction.
Jones v. Alayon, 162 So. 3d 360, 365 (Fla. 4th DCA 2015) (quoting Johnson
v. State, 40 So. 3d 883, 886 (Fla. 4th DCA 2010)).
v. State, 40 So. 3d 883, 886 (Fla. 4th DCA 2010)).
This court has recognized the
inflammatory effects of evidence of a party’s alcohol use in the context of an
action arising from a car accident, and has held them inadmissible as unduly
prejudicial where liability is admitted. See Neering v. Johnson, 390 So.
2d 742, 744 (Fla. 4th DCA 1980). However, even when a defendant admits
liability, where comparative negligence is alleged, “the trier of fact must
hear the ‘totality of fault’ of each side,” i.e., the specific acts of
negligence of each party. Lenhart v. Basora, 100 So. 3d 1177, 1179 (Fla.
4th DCA 2012).
inflammatory effects of evidence of a party’s alcohol use in the context of an
action arising from a car accident, and has held them inadmissible as unduly
prejudicial where liability is admitted. See Neering v. Johnson, 390 So.
2d 742, 744 (Fla. 4th DCA 1980). However, even when a defendant admits
liability, where comparative negligence is alleged, “the trier of fact must
hear the ‘totality of fault’ of each side,” i.e., the specific acts of
negligence of each party. Lenhart v. Basora, 100 So. 3d 1177, 1179 (Fla.
4th DCA 2012).
Regardless, a plaintiff driver’s
potential impairment is probative of whether he caused or contributed to an
accident:
potential impairment is probative of whether he caused or contributed to an
accident:
Whether or
not a person is under the influence of intoxicating liquor to the extent that
his or her normal faculties are impaired is a question of fact and should be
determined by the jury when there is substantial evidence submitted on that
question.
not a person is under the influence of intoxicating liquor to the extent that
his or her normal faculties are impaired is a question of fact and should be
determined by the jury when there is substantial evidence submitted on that
question.
Seltzer v. Grine, 79 So. 2d 688, 689 (Fla. 1955); see also Flint v. State,
117 So. 2d 552, 556 (Fla. 2d DCA 1960) (holding evidence of appellant’s
consumption of alcohol prior to the accident was properly admitted in trial for
manslaughter by culpable negligence in operation of an automobile because
“ordinarily, persons under the influence of intoxicants to any considerable
degree, though not actually intoxicated or drunk, are more apt to be heedless,
reckless, and daring than when free from such influence” (quoting Cannon v.
State, 107 So. 360, 362 (Fla. 1926))).
117 So. 2d 552, 556 (Fla. 2d DCA 1960) (holding evidence of appellant’s
consumption of alcohol prior to the accident was properly admitted in trial for
manslaughter by culpable negligence in operation of an automobile because
“ordinarily, persons under the influence of intoxicants to any considerable
degree, though not actually intoxicated or drunk, are more apt to be heedless,
reckless, and daring than when free from such influence” (quoting Cannon v.
State, 107 So. 360, 362 (Fla. 1926))).
Here, the evidence of alcohol
consumption on the evening of the accident was material to the issue of
comparative negligence and was not speculative. Reagle admitted that he had two
drinks between 7:30 and 10:30, which means that he could have been drinking
forty-eight minutes before the accident occurred at 11:18. Reagle’s motorcycle
passenger, Vincent, admitted she had been drinking, and a witness testified
that she smelled alcohol on her. A responding officer smelled alcohol on
Draleaus. Finally, the expert testified that even small quantities of alcohol
can impair a motorcycle operator’s perception and reaction.
consumption on the evening of the accident was material to the issue of
comparative negligence and was not speculative. Reagle admitted that he had two
drinks between 7:30 and 10:30, which means that he could have been drinking
forty-eight minutes before the accident occurred at 11:18. Reagle’s motorcycle
passenger, Vincent, admitted she had been drinking, and a witness testified
that she smelled alcohol on her. A responding officer smelled alcohol on
Draleaus. Finally, the expert testified that even small quantities of alcohol
can impair a motorcycle operator’s perception and reaction.
This evidence conclusively
established that at least some of the plaintiffs were drinking prior to the
accident and therefore properly raised the issue as to whether the alcohol
consumption was a contributing factor in the accident, and thus whether
plaintiffs were under the influence to the extent that their faculties were
impaired. This was a question of fact for the jury to consider.
established that at least some of the plaintiffs were drinking prior to the
accident and therefore properly raised the issue as to whether the alcohol
consumption was a contributing factor in the accident, and thus whether
plaintiffs were under the influence to the extent that their faculties were
impaired. This was a question of fact for the jury to consider.
Moreover, the weight of the evidence
tending to prove the plaintiffs were not impaired against the weight of the
evidence of their alcohol consumption is a factual determination reserved for
the jury. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d,
457 U.S. 31 (1982) (“It is a determination of the trier of fact that a greater
amount of credible evidence supports one side of an issue or cause than the
other.”).
tending to prove the plaintiffs were not impaired against the weight of the
evidence of their alcohol consumption is a factual determination reserved for
the jury. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d,
457 U.S. 31 (1982) (“It is a determination of the trier of fact that a greater
amount of credible evidence supports one side of an issue or cause than the
other.”).
In light of our determination that
the trial court erred in excluding the evidence of alcohol consumption, we
direct that on remand, the defendant should be permitted to pursue his defense
under section 768.36, Florida Statutes (2006), which provides in pertinent
part:
the trial court erred in excluding the evidence of alcohol consumption, we
direct that on remand, the defendant should be permitted to pursue his defense
under section 768.36, Florida Statutes (2006), which provides in pertinent
part:
(2) In any
civil action, a plaintiff may not recover any damages for loss or injury to his
or her person or property if the trier of fact finds that, at the time the
plaintiff was injured:
civil action, a plaintiff may not recover any damages for loss or injury to his
or her person or property if the trier of fact finds that, at the time the
plaintiff was injured:
(a) The
plaintiff was under the influence of any alcoholic beverage or drug to the
extent that the plaintiff’s normal faculties were impaired or the plaintiff had
a blood or breath alcohol level of 0.08 percent or higher; and
plaintiff was under the influence of any alcoholic beverage or drug to the
extent that the plaintiff’s normal faculties were impaired or the plaintiff had
a blood or breath alcohol level of 0.08 percent or higher; and
(b) As a
result of the influence of such alcoholic beverage or drug the plaintiff was
more than 50 percent at fault for his or her own harm.
result of the influence of such alcoholic beverage or drug the plaintiff was
more than 50 percent at fault for his or her own harm.
According to the plain language of
the statute, it is up to the “trier of fact” to determine whether the
plaintiffs’ normal faculties were impaired and whether they were more than
fifty percent at fault for their injuries. Since Stewart should be allowed to
present evidence on Reagle and Draleaus’s alcohol consumption, it follows that
he should be able to present his section 768.36 defense with respect to these
two plaintiffs.
the statute, it is up to the “trier of fact” to determine whether the
plaintiffs’ normal faculties were impaired and whether they were more than
fifty percent at fault for their injuries. Since Stewart should be allowed to
present evidence on Reagle and Draleaus’s alcohol consumption, it follows that
he should be able to present his section 768.36 defense with respect to these
two plaintiffs.
C. Evidence of License Violation
Third, we address the trial court’s
exclusion of evidence that, at the time of the accident, Reagle had not taken
the required examination and thus possessed only a temporary motorcycle license
that did not allow him to carry passengers.1 The trial court ruled that the
evidence was not admissible because Reagle’s mere failure to take the requisite
test and obtain his permanent motorcycle license did not indicate negligence in
the subject accident, and thus the violation was irrelevant.
exclusion of evidence that, at the time of the accident, Reagle had not taken
the required examination and thus possessed only a temporary motorcycle license
that did not allow him to carry passengers.1 The trial court ruled that the
evidence was not admissible because Reagle’s mere failure to take the requisite
test and obtain his permanent motorcycle license did not indicate negligence in
the subject accident, and thus the violation was irrelevant.
We review the trial court’s ruling
on the admissibility of the evidence for an abuse of discretion. Pantoja,
59 So. 3d at 1095.
on the admissibility of the evidence for an abuse of discretion. Pantoja,
59 So. 3d at 1095.
In precluding the evidence of the
license restriction violation, the trial court relied on Brackin, 452
So. 2d at 542, in which the Florida Supreme Court concluded that “a violation
of the driver’s license law is admissible if relevant to the issues in a cause”
and further explained:
license restriction violation, the trial court relied on Brackin, 452
So. 2d at 542, in which the Florida Supreme Court concluded that “a violation
of the driver’s license law is admissible if relevant to the issues in a cause”
and further explained:
Evidence
is relevant if it tends to prove or disprove a material fact at issue. Hence a
person’s violating a traffic regulation is admissible evidence only if it tends
to prove that that person has negligently operated an automobile. Relevancy
is usually inherently established when the traffic regulation which was
violated concerns the manner in which an automobile was operated. Relevancy
is not so easily established when the traffic regulation which was violated
concerns a licensing requirement.
is relevant if it tends to prove or disprove a material fact at issue. Hence a
person’s violating a traffic regulation is admissible evidence only if it tends
to prove that that person has negligently operated an automobile. Relevancy
is usually inherently established when the traffic regulation which was
violated concerns the manner in which an automobile was operated. Relevancy
is not so easily established when the traffic regulation which was violated
concerns a licensing requirement.
The vast
majority of jurisdictions hold that a violation of a driver’s license law is
not evidence of negligence in the absence of some causal connection between the
violation and the injury. See Annot., 29 A.L.R.2d 963 (1953 & Supp.
1981). This requirement of a causal connection for evidence of a violation to
be admissible should not be confused with the proximate cause element of a tort
action for negligence. The first is a determination of law made by a trial
judge in deciding whether a person’s violating a driver’s license regulation is
relevant. Whether such a violation is a proximate cause of any damage or
injuries is a finding of fact to be made by the jury.
majority of jurisdictions hold that a violation of a driver’s license law is
not evidence of negligence in the absence of some causal connection between the
violation and the injury. See Annot., 29 A.L.R.2d 963 (1953 & Supp.
1981). This requirement of a causal connection for evidence of a violation to
be admissible should not be confused with the proximate cause element of a tort
action for negligence. The first is a determination of law made by a trial
judge in deciding whether a person’s violating a driver’s license regulation is
relevant. Whether such a violation is a proximate cause of any damage or
injuries is a finding of fact to be made by the jury.
Thus the
real issue in this case is whether the trial judge erred in deciding as a
matter of law that Brackin’s violating the restriction on his license was not
relevant to the manner in which he was operating the automobile. In some
situations the violation of such a restriction may be relevant to show the
driver’s inexperience and incompetence in handling an automobile. See
Dorsett v. Dion. In this case, however, Brackin’s experience and competence
were not placed in issue. Moreover, the accident took place only a few days
before Brackin’s seventeenth birthday and he had been driving for almost two
years. Boles’ case did not rest upon Brackin’s inexperience, but rather upon
the allegation that Brackin was exceeding the speed limit. We therefore find
that the trial court was correct in ruling that Brackin’s violation of [the
statute requiring accompaniment by licensed adult] was not relevant and
therefore was inadmissible.
real issue in this case is whether the trial judge erred in deciding as a
matter of law that Brackin’s violating the restriction on his license was not
relevant to the manner in which he was operating the automobile. In some
situations the violation of such a restriction may be relevant to show the
driver’s inexperience and incompetence in handling an automobile. See
Dorsett v. Dion. In this case, however, Brackin’s experience and competence
were not placed in issue. Moreover, the accident took place only a few days
before Brackin’s seventeenth birthday and he had been driving for almost two
years. Boles’ case did not rest upon Brackin’s inexperience, but rather upon
the allegation that Brackin was exceeding the speed limit. We therefore find
that the trial court was correct in ruling that Brackin’s violation of [the
statute requiring accompaniment by licensed adult] was not relevant and
therefore was inadmissible.
Id. at 545 (emphasis added).
We find that the trial court erred
when it excluded this evidence. Reagle admitted that carrying a passenger can
change the unique dynamics of a motorcycle, i.e., the manner in which the
motorcycle is operated. Since “[r]elevancy is usually inherently established
when the traffic regulation which was violated concerns the manner in which an
automobile was operated,” id., we find that — in this particular
situation — the motorcycle license violation was relevant to the case at hand.
The evidence should have been presented to the jury for a determination of
whether the violation proximately caused any of the plaintiffs’ injuries.
when it excluded this evidence. Reagle admitted that carrying a passenger can
change the unique dynamics of a motorcycle, i.e., the manner in which the
motorcycle is operated. Since “[r]elevancy is usually inherently established
when the traffic regulation which was violated concerns the manner in which an
automobile was operated,” id., we find that — in this particular
situation — the motorcycle license violation was relevant to the case at hand.
The evidence should have been presented to the jury for a determination of
whether the violation proximately caused any of the plaintiffs’ injuries.
III.
Conclusion
Conclusion
Because the trial court erred in
excluding the witness statement and erred in excluding relevant evidence of
alcohol consumption and a license violation, we reverse and remand for a new
trial. However, with particular respect to the evidence of alcohol consumption
and the license violation, we caution that “[s]uch evidence, to be admissible,
should be demonstrated to relate to the relevant issues and not be used solely
to create prejudice in the minds of the jurors.” See Botte v. Pomeroy,
497 So. 2d 1275, 1279 (Fla. 4th DCA 1986).
excluding the witness statement and erred in excluding relevant evidence of
alcohol consumption and a license violation, we reverse and remand for a new
trial. However, with particular respect to the evidence of alcohol consumption
and the license violation, we caution that “[s]uch evidence, to be admissible,
should be demonstrated to relate to the relevant issues and not be used solely
to create prejudice in the minds of the jurors.” See Botte v. Pomeroy,
497 So. 2d 1275, 1279 (Fla. 4th DCA 1986).
Reversed and remanded. (GROSS and MAY, JJ., concur.)
__________________
1Further,
Vincent knew of the restriction, since Reagle was pulled over for weaving in
and out of traffic while she was riding as his passenger several days before
the accident, and the law enforcement officer made her get off of the
motorcycle due to Reagle’s license restriction.
Vincent knew of the restriction, since Reagle was pulled over for weaving in
and out of traffic while she was riding as his passenger several days before
the accident, and the law enforcement officer made her get off of the
motorcycle due to Reagle’s license restriction.
* * *