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Florida Fourth DCA rules that plaintiff's prior statement alleging cause of accident at odds with stipulation of the parties was inadmissible as substantive evidence

On July 22, 2020, in Emmitt v. First Transit, Inc., No. 4D19-721, the Florida Fourth DCA reversed a trial court order which had granted a new trial to a defendant in a premises liability case based on a fall the plaintiff suffered from defendant’s trolley.  The trial court had granted the defendant a new trial after concluding that it had erred by not allowing the defendant to introduce as substantive evidence the plaintiff’s alleged statement memorialized in a medical record that “patient states as she was stepping off, the driver jerked the trolley causing her to fall.”  This statement was inconsistent with a surveillance video which allegedly showed that the trolley had come to a complete stop before the plaintiff’s fall. The trial court excluded it from substantive evidence after concluding that the basis on which the defense asked for it be submitted, as a statement for purposes of medical diagnosis or treatment admissible under section 90.803(4), Florida Statutes, was not valid.  The trial court indicated that the defense could impeach the plaintiff with the statement as an inconsistent statement, although the defense did not follow up on this.  After the jury returned a verdict for the plaintiff, the defendant argued for the first time that the statement should have been admitted as an admission by a party, citing section 90.803(18), Florida Statutes, and Ring Power Corp. v. Condado-Perez, 219 So. 3d 1028 (Fla. 2d DCA 2017).  The trial court then entered an order granting the defendant’s motion for a new trial on this basis.  In reversing the trial court’s order granting the new trial, the Fourth DCA observed (1) that there had been no timely proper objection under section 90.803(18) to the trial court’s exclusion of the evidence and (2) the parties had in fact stipulated at trial that a “jolt” did not caused the accident, making the statement irrelevant as substantive evidence of the truth of the matter stated.