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Florida Fourth DCA remands case for new trial due to trial court's erroneous exclusion of evidence, including witness statement to investigating police officer

On July 26, 2017, in Stewart v. Draleaus, No. 4D15-2320, the Florida Fourth DCA reversed a final judgment following a trial verdict that imposed 55% comparative negligence liability against the defendant driver of a vehicle that struck several motorcyclists. The Fourth DCA concluded that the trial court erred in precluding the defendant’s introduction of 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.

The witness statement at issue was a statement made by another motorist who was involved in her own accident when she swerved to avoid the persons at the motorcycle accident scene. Deposition testimony by her was admitted at trial regarding observations she made of the motorcycles just prior to the motorcycle accident. However, the plaintiff motorcyclists also wanted a statement admitted that the witness made at the accident scene to a law enforcement officer investigating her accident. The trial court sustained the defense’s objection to the admission of this evidence, ruling that it was barred by the Section 316.066(4), Florida Statutes, which excludes the admission of a statement made by a person “involved in a crash” if the statement was made to a law enforcement officer to complete a crash report required under the statute.

The Fourth DCA noted that this statutory immunity has been determined to apply to the driver, owner or occupant of a vehicle who is compelled to make a statement to comply with the reporting requirements of Section 316.066, citing Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984). It is not limited to the declarant and “extends to all persons within its ambit, those involved in the accident.” Quoting Hoctor ex rel. Hoctor v. Tucker, 432 So. 2d 1352, 1353 (Fla. 5th DCA 1983). However, the immunity does not extend to mere witnesses because they have no statutory obligation to provide a statement. Citing McTevia v. Schrag, 446 So. 2d 1183, 118485 (Fla. 4th DCA 1984). The trial court avoided this obstacle to its ruling by reaching the factual determination that the witness’ accident and the motorcycle accident were not separate accidents, but a “continuous chain of events” that caused the witness to be covered by the accident report privilege from the first accident. The Fourth DCA disagreed, noting that neither the witness’ vehicle nor the vehicle she struck actually had collided with the plaintiffs’ motorcycles and separate accident reports were prepared by different law enforcement officers.

The trial court also refused to admit evidence that two of the plaintiff motorcyclists had been drinking prior to the accident, focusing on the fact that a blood test the morning after the accident was negative and that there were no observations of inebriated behavior noted at the accident scene. The Fourth DCA noted that while evidence of alcohol use has been held unduly prejudicial and therefore inadmissible where liability is admitted, citing Neering v. Johnson, 390 So. 2d 742, 744 (Fla. 4th DCA 1980), such evidence is admissible where comparative negligence is alleged, citing Lenhart v. Basora, 100 So. 3d 1177, 1179 (Fla. 4th DCA 2012). In remanding on this issue, the Fourth DCA specifically directed that the defendant should also be allowed to pursue his defense under Section 768.38, Florida Statutes, which precludes recovery by a plaintiff who was legally intoxicated at the time of the accident and is found to be more than 50% at fault for his or her harm.

The trial court also refused to admit evidence that one of the plaintiff motorcyclists, who was carrying a passenger at the time of the accident, possessed only a temporary motorcycle license that did not allow him to carry passengers. The Fourth DCA acknowledged that the Florida Supreme Court has held that evidence of a violation of a driver’s license regulation is only relevant if there is a basis to conclude that the violation was causally related to the accident, see Brackin, 452 So. 2d at 542, but concluded that under the circumstances of this case there was such a basis because the plaintiff admitted that carrying a passenger can change the unique dynamics of a motorcycle.