40 Fla. L. Weekly D814a
Admissions of a Party Opponent
(18) Admissions. — A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth . . . .
Although there is some contrary authority, the established rule in Florida, and the clear majority rule throughout the country, is that an admission by a party opponent or his agent need not be based on the personal knowledge of a party or his agent. This is so because when a person or his agent speaks against his own interest, as here, or otherwise makes relevant admissions of substantial importance to himself, it may be assumed that he or his agent has made an adequate investigation so that such statements possess, even if not based on firsthand observation, a substantial indicia of reliability.
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.
[E]vidence of failure to wear an available and fully operational seat belt may be considered by the jury in assessing a plaintiff’s damages where the “seat belt defense” is pled and it is shown by competent evidence that failure to use the seat belt produced or contributed substantially to producing at least a portion of the damages.
Nonuse of the seat belt may or may not amount to a failure to use reasonable care on the part of the plaintiff. Whether it does depends on the particular circumstances of the case. Defendant has the burden of pleading and proving that the plaintiff did not use an available and operational seat belt, that the plaintiff’s failure to use the seat belt was unreasonable under the circumstances, and that there was a causal relationship between the injuries sustained by the plaintiff and plaintiff’s failure to buckle up. If there is competent evidence to prove that the failure to use an available and operational seat belt produced or contributed substantially to producing at least a portion of plaintiff’s damages, then the jury should be permitted to consider this factor, along with all other facts in evidence, in deciding whether the damages for which defendant may otherwise be liable should be reduced.
Id. at 454.
the legislature did not make the failure to wear a seat belt negligence per se or prima facie evidence of negligence[,] . . . . we conclude a jury may still consider the availability or operability of a seat belt in its broader negligence analysis since it is part of the circumstances upon which the jury may decide whether the plaintiff’s omission was reasonable.
Id. at 943 n.14 (emphasis added). We understand Ridley to hold that the seatbelt statute does not require the defendant to show that the plaintiff had an available and fully operational seatbelt as a prerequisite to asserting a comparative negligence defense. Instead, the failure to wear a seatbelt is an element of comparative negligence, and the jury can consider all of the surrounding circumstances, including the inoperability of the belt and the reason why it is inoperable, to determine whether the plaintiff was comparatively negligent. Cf. DiMauro v. Metro. Suburban Bus Auth., 105 A.D.2d 236, 244-45 (N.Y. App. Div. 1984) (plaintiff’s voluntary decision to sit in a seat that plaintiff knew had inoperable seat belt, where other seats with working seat belts were available, could be considered in mitigation of damages).
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