Fifth DCA
Song v. Jenkins
5th DCA
3/31/23, Judge Edwards
Topics: Motion in Limine, Negligence
Fu Lu Song was driving a tractor trailer owned by American Trucking Company. He was driving in Interstate 95 near Jacksonville when a car in front of him suddenly slowed down. The roads were wet. To avoid rear-ending that car, Song veered into the right lane. Trying to avoid hitting Song’s truck, a second car swerved to its right and collided with a van in which Jenkins was a passenger. Song kept on truckin’. He saw the accident in his rear-view mirror, but testified that he did not think he needed to stop because he didn’t collide with any other vehicle. The whole thing was caught on a dashcam video by another driver, Mr. Jordan.
Everyone agreed that the first 48 seconds of Mr. Jordan’s dashcam video were relevant to show the wet conditions, the busy traffic, and then the sequence of events that led to the accident. After the first 48 seconds, however, the video continued for more than four minutes that included video and audio of Mr. Jordan essentially shouting about the accident and chasing Song to get his license plate number. The video/audio included Jordan’s 911 call, Jordan’s excited utterances about the crash, and his opinions that Song had been driving dangerously fast and caused the wreck. Jordan also stated on the video that Song was essentially fleeing the scene, which is why he was pursuing him.
The defense moved in limine to exclude all audio and the portion of the video after the 48 second mark. Defendants argued that the video after the crash and all of the audio were irrelevant to any issue, that Mr. Jordan’s comments were inadmissible lay opinions about liability, and that the accusations of fleeing the scene were more prejudicial than probative. The trial court overruled the objections and allowed the full 5 minutes of audio and video to be played.
The “fleeing the scene” theme was a major portion of closing argument, and the trial attorney implored the jury to place 100% of fault on Song for that reason. “The conduct of the defendant coming after the collision and incurrence of injuries could have no proximate or causal relationship to the negligence or causal relationship to the negligence or liability question.” Therefore, it was irrelevant, and the court was wrong to admit it. The repeated comments on the soundtrack that Song was fleeing the scene were unfairly prejudicial and irrelevant. Song never claimed he stopped at the scene. He never disputed something disproven by the “chase” portion of the tape. Showing how Jordan obtained the license plate merely duplicated Jordan’s trial testimony. Jordan’s lay opinions that Song was going too fast for conditions and that Song caused the wreck were not admissible and invaded the province of the jury.
The DCA also found error in the admission of an accident report diagram that was part of the official traffic crash report. It was not to scale and was demonstrably inaccurate in its depiction of events when compared to the dash cam video. It was not authenticated by anyone, and it was not based on any scientific accident reconstruction. No evidence was presented regarding who prepared it, who provided whatever information was considered, nor how the path of each vehicle was determined. That diagram was essentially a non-verbal depiction of opinions formulated by an anonymous witness, relying on unknown information, employing an undisclosed methodology. Initially, over Appellants’ objections, Jenkins convinced the trial court to allow him to use the diagram as a “demonstrative aid.” He argued that counsel could get any one of the percipient witnesses to step over to the ubiquitous courtroom easel to draw a similar diagram. (NOTE: For some reason, Judge Edwards used the word “percipient” twice in the opinion to mean a witness who perceived the events. The word really refers to a character trait (i.e. she is perceptive and discerning), and it not usually used in this fashion. Apparently this is his word of the week. Maybe we can get it trending). The DCA acknowledged that many such simple diagrams prepared in court are usefully employed as a demonstrative aid to generally orient the jury to the accident scene, location of witnesses, etc.
The Defense also objected that the diagram was inadmissible under the accident report privilege contained in section 316.066(4), Fla. Stat., which flatly states that accident reports may not be used as evidence in any civil or criminal trial. The plaintiff’s attorney claimed that he cured this problem by removing references to it being part of an accident report. His better argument was that there was no proof that the diagram was based on any statement from a witness to the accident. (NOTE: You could just FEEL Judge Edwards resisting the urge to call them ‘percipient’ witnesses to the accident.) If the diagram was based, in whole or in part, on information provided by any of the people actually involved in the accident it would be inadmissible; however, no proof one way or the other was offered on that issue.
But then plaintiff’s lawyer really stepped in it. Demonstrative aides are more like argument; they are not evidence, kids. It was a close question on whether it wrong to use the diagram as a demonstrative aid given how it inaccurately depicted the scene, but then the attorney moved to make the diagram an actual exhibit and move it into evidence, which the judge allowed. And Judge Edwards was eminently percipient in holding that, under the circumstances, “given that it was not properly authenticated, not to scale, generally unexplained, and differed in its depiction from what is clearly seen in the dash cam video, the trial court erred in overruling Appellants’ objections to admitting it into evidence.” Jenkins argued that the error was harmless, but he failed to argue that there was no reasonable possibility that the error contributed to the verdict.
The court held: “We find that the errors described above, individually and cumulatively, deprived Appellants of a fair trial. Accordingly, we reverse for a new trial on all issues.”
https://supremecourt.flcourts.gov/content/download/864904/opinion/230024_DC13_03312023_ 085609_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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