Fino v. Nodine

• Decision Date: 17 August 1994
• Docket Number: No. 93-1324,93-1324
• Citation: Fino v. Nodine, 646 So.2d 746 (Fla. App. 1994)
• Court: Florida District Court of Appeals
• Parties: 19 Fla. L. Weekly D1741 Yolanda FINO, as Personal Representative of the Estate of Gerald J. Fino, Deceased, Appellant, v. Nancy NODINE, Ruth E. Wheeler, Raymond H. Wheeler, and Felipe Baten, Appellees.

Page 746

646 So.2d 746

19 Fla. L. Weekly D1741

Yolanda FINO, as Personal Representative of the Estate of Gerald J. Fino, Deceased, Appellant, v.Nancy NODINE, Ruth E. Wheeler, Raymond H. Wheeler, and Felipe Baten, Appellees.

No. 93-1324.

District Court of Appeal of Florida Fourth District.

Aug. 17, 1994.

Order Correcting Opinion on Denial of Motions for Rehearing,

Clarification, and Certification Jan. 18, 1995.

Adam H. Lawrence of Lawrence & Daniels, and Malove, Kaufman & Marbin, P.A., Miami, for appellant.

John Ward Smith and Terry A. Slusher of Roth, Edwards & Smith, P.A., Orlando, for appellees.

PER CURIAM.

The plaintiff/personal representative of the decedent, Gerald Fino, appeals a final judgment rendered pursuant to a jury verdict in favor of appellees/defendants.We reverse and remand for a new trial, the second point on appeal being persuasive.

Appellee/defendantNancy Nodine and appellee/third-party defendantFelipe Baten were involved in an accident at a dangerous intersection when Baten allegedly ran a flashing red light and a stop sign.Nodine had a flashing yellow cautionary light.As a result of the accident, the car driven by Nodine was propelled into decedent, a pedestrian, causing his death.A default judgment was entered against Baten and the case against Nodine went to trial.The case against Nodine was premised on the theory that she was inattentive and unresponsive to the hazards of the intersection at which the accident occurred and that, although Baten was negligent in proceeding through the intersection without stopping, Nodine's negligence also contributed to the accident.The jury returned a verdict for Nodine.

Portions of Nodine's deposition testimony were introduced by the plaintiff and later by the defense.Nodine appeared at trial, but was not called to testify by either side.Baten's deposition testimony was also presented.Baten did not appear at trial.

Nodine's deposition testimony and the testimony of several witnesses established that the intersection was dangerous due to the fact that it was new and that visibility was obscured by landscaping.

In addition to the deposition testimony of Nodine and Baten regarding their own versions of the circumstances surrounding the accident, two eyewitnesses, Carol Koch(by way of her videotaped deposition) and James Walker testified.An accident expert witness was presented by each side.

Koch's videotaped deposition was played for the jury.Koch testified as to what she observed.Defense counsel then asked Koch:

From your view of the accident and what occurred in the accident, was there anything that the station wagon [Nodine's vehicle] could have done to avoid the accident?

Plaintiff's counsel objected on the basis that the question called for an expert opinion and that it was a jury question.The trial court overruled the objection, expressing the belief that it was Koch's way of trying to describe what she saw with her own eyes.Koch was then permitted to answer:

Other than what I saw the vehicle doing, I would say no.And meaning that she attempted to stop just by, you know, braking, which is what she had to have been doing because of the pitch of the car.

Previously, defense counsel had asked Koch, who worked as an armed security officer, "How observant of a person are you?"Over plaintiff's objection as to the form of the question, Koch was allowed to describe herself as "very observant, simply because that's the main criteria for being a security officer."In response to defense counsel's question as to whether Koch was "more or less trained to be observant," Koch responded "Yes, they don't hire you unless you have proven you're observance [sic] in those jobs."

Plaintiff's counsel also objected on hearsay grounds to admission of the following statement by Koch in response to a question by plaintiff as to whether Koch remembered two men at the scene of the accident, one of whom was determined to be Walker, the other testifying witness:

I spoke with a couple of people.There was [sic] two men who said that they had been traveling east bound on 22nd that had seen everything that had happened, and he came over and gave me his name in case the police needed to contact him.

The other eyewitness, Walker, testified as to what he observed.Defense counsel then asked Walker:

Based upon your observations is there anything that you feel the station wagon [Nodine's vehicle] could have done to avoid the accident?

Plaintiff's counsel objected on the ground that the question called for an expert witness opinion.The court overruled the objection.Walker answered, "Emphatically none."

During closing arguments, defense counsel argued that none of the eyewitnesses saw Nodine do anything wrong.Counsel emphasized Koch and Walker's opinions that the accident was unavoidable:

Ms. Koch was asked what she saw the station wagon doing, or was there anything that you can think of that the station wagon could have done to avoid the accident and her answer was she did not know of anything that she could have done to avoid that accident.

....

Mr. Walker, what does he say?It is remarkably similar to what Carole Koch says....Is there anything that the station wagon driver, or the driver in the station wagon could have done to avoid the accident?Again, you rely on your recollection of what he said.I would suggest to you that his response was emphatically not.

As appellee points out, these comments were not isolated, but were included in a broader argument highlighting the facts presented by the testimony of these witnesses.

[1] Initially, it should be noted that the decision of whether or not to allow lay witness opinion testimony is within the discretion of the trial court.Hughes v. Canal Ins. Co., 308 So.2d 552(Fla. 3d DCA1975).

"Generally, a lay witness may not testify in terms of an inference or opinion, because it usurps the function of the jury.The jury's function is to determine the credibility and weight of such testimony."Floyd v. State, 569 So.2d 1225, 1231-32(Fla.1990)(citation omitted), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075(1991).However, a lay witness is permitted to testify in the form of an opinion or inference as to what he perceived if two conditions are met:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

Sec. 90.701,Fla.Stat.(1991).¹"Lay witness opinion testimony is admissible if it is within the ken of an intelligent person with a degree of experience."Floyd, 569 So.2d at 1232.

[2][3][4] Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived.Sec. 90.701,Fla.Stat.(1991);Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140(Fla. 4th DCA1985).Acceptable lay opinion testimony typically involves matters such as distance, time size, weight, form and identity.Vosburgh, 480 So.2d at 143.Before lay opinion testimony can be properly admitted, a predicate must be laid in which the witness testifies as to the facts or perceptions upon which the opinion is based.Beck v. Gross, 499 So.2d 886, 889(Fla. 2d DCA1986), rev. dismissed by503 So.2d 327(Fla.1987)."[B]efore one can render an opinion he must have had sufficient opportunity to observe the subject matter about which his opinion is rendered."Albers v. Dasho, 355 So.2d 150, 153(Fla. 4th DCA), cert. denied, 361 So.2d 831(Fla.1978).Appellant argues that the opinions of Koch and Walker were not admissible because their testimony indicated that they did not adequately perceive the events leading up to the accident.We agree.See alsoGroener v. Briehl, 135 Ariz. 395, 661 P.2d 659(App.1983).

As appellant points out, Koch could not testify as to Nodine's speed, when she began to brake, what she could or could not see, or as to her conduct as she approached the intersection, including her attentiveness.Therefore, Koch's perceptions did not support her opinion that there was nothing that Nodine could have done to avoid the accident.Accordingly, the trial court abused its discretion in overruling appellant's objection and admitting this lay opinion.

[6] Moreover, the necessary predicate was not laid before Walker was allowed to offer his opinion.Although Walker's perception of Nodine's speed offers some support of his opinion, Walker's testimony regarding the landscaping and his distance indicate that he did not have a "sufficient opportunity to observe the subject matter about which his opinion is rendered."Albers, 355 So.2d at 153.Furthermore, Walker offered no testimony as to when Nodine began to brake or slow down.Nor could he testify as to Nodine's attentiveness.Accordingly, it was also error to allow Walker's opinion that there was nothing Nodine could have done to avoid the accident.

[7] Furthermore, both eye-witnesses testified as to what they perceived without difficulty.Applying the conditions set out in section 90.701, the opinion testimony of these witnesses was unnecessary to communicate what they had perceived.In testifying about what they observed, the witnesses used specific estimates of distances, speed, relative location and the positions of the cars.In fact, the challenged opinion testimony was given only in response to defense counsel's very specific question of whether the witnesses felt there was anything that Nodine could have done to avoid the accident.Thus in communicating their perceptions, the witnesses themselves did not find it necessary to offer this opinion of unavoidability and only did so when directly asked.

[8] Although section 90.703, Florida Statutes(1991),...