Forester v. Norman Roger Jewell & Brooks Intern., Inc.

• Decision Date: 30 December 1992
• Docket Number: No. 91-3838,91-3838
• Citation: 610 So.2d 1369
• Parties: 18 Fla. L. Week. D194 Donna C. FORESTER, as Personal Representative of the Estate of Stephen A. Forester, Appellant, v. NORMAN ROGER JEWELL & BROOKS INTERNATIONAL, INC., d/b/a Harpers Express, Appellees.
• Court: Florida District Court of Appeals

Page 1369

610 So.2d 1369

18 Fla. L. Week. D194

Donna C. FORESTER, as Personal Representative of the Estate

of Stephen A. Forester, Appellant, v. NORMAN ROGER JEWELL & BROOKS INTERNATIONAL, INC., d/b/a

Harpers Express, Appellees.

No. 91-3838.

District Court of Appeal of Florida,

First District.

Dec. 30, 1992.

Rehearing Denied Feb. 5, 1993.

Lefferts L. Mabie, Jr., and Robert M. Loehr of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.

Patricia Guilday of Fuller, Johnson, & Farrell, Pensacola, for appellees.

ERVIN, Judge.

Appellant/plaintiff below, Donna C. Forester, as Personal Representative of the Estate of Stephen A. Forester, challenges a final judgment entered in favor of appellees/defendants, Norman Roger Jewell and Brooks International, Inc., d/b/a Harpers Express, in this wrongful death claim arising from an automobile accident. Forester contends that the trial court erred in admitting into evidence two reports apparently prepared by emergency medical technicians (EMTs) containing information indicating that two of the persons involved in the automobile accident were wearing seat belts. She asserts the documents were hearsay, for which the proper foundation for admission was not laid. We agree and therefore reverse and remand the case for new trial.

The accident which claimed Forester's life involved two separate collisions that occurred on a foggy morning prior to dawn on Highway 87 in Santa Rosa County. The first pertained to a head-on collision between a 1987 Toyota and a 1971 Datsun pickup truck. The Toyota, driven by Kenneth Evans and occupied by Byron Parker, struck Forester's Datsun while Evans was attempting to pass another vehicle. The second collision occurred two or three minutes later when a tractor-trailer truck driven by defendant Jewell, in his capacity as an employee of defendant Brooks International, collided with the rear of Forester's disabled truck. Thereafter, Forester was found dead at the scene; Evans, Parker, and Jewell survived.

Plaintiff's theory of negligence was that Forester had survived the first impact with Evans' Toyota and that the second collision with Jewell's tractor-trailer truck resulted in a head injury causing Forester's death. At trial plaintiff adduced eyewitness testimony showing that Evans was found lying on the ground outside his car following the first collision and that Forester's body was lying on the ground after the second collision, medical testimony reflecting that the trauma to Forester's head was a fatal injury, and investigative testimony stating that no blood or human tissue was found inside the cab of Forester's pickup truck. Plaintiff also presented testimony through Dr. William Fogarty, an expert in accident reconstruction, who opined that the bulk of the damage to the rear of Forester's cab was caused in the second collision with Jewell's truck, and that Forester received the fatal head injury during the second accident. Dr. Fogarty explained that the second collision caused Forester's pickup truck to turn and the driver's side door to open. Forester fell out the open door as the Datsun spun and his head struck the left rear wheel of the Datsun, leaving a large amount of blood in that area. Dr. Fogarty explained that the absence of blood inside the cab of the Datsun indicated that Forester's more serious injuries did not occur during the first impact, while he was inside the cab.

The defendants, on the other hand, postulated that Forester was killed during the first collision with Evans' Toyota. To prove their theory, they attempted to show that Evans and Parker were only able to survive the initial accident because they were seated in a more crashworthy vehicle than Forester, and because they were both wearing seat belts at that time. In support of this theory, they submitted their expert in accident reconstruction, Dr. Verne Roberts, who, in describing the effect of the first collision, explained that the force of the impact with Evans' car caused Forester's body to move forward into the steering wheel and dash, and that the cargo in the bed of Forester's pickup truck (a box of lead weighing 200 pounds, a roll of lead weighing 50 pounds, homemade anchors, boards, a hammer, etc.) also traveled forward, smashing into the cab, breaking the rear window, and striking Forester's head. Dr. Roberts also testified that the circular abrasions to Forester's chest were caused during the first impact when Forester collided with the steering wheel, and that it was possible that Forester's aorta had then ruptured. ¹ He opined that, within a reasonable degree of engineering probability, the G-forces exerted upon Forester in the first collision exceeded human tolerance and were exacerbated by the sudden thrust of the cargo moving forward. He therefore attributed none of the serious injuries suffered by Forester to the second accident, but rather opined that Forester had died solely as a result of injuries received during the former.

Dr. Roberts also considered from his examination of the evidence that Forester remained part in and part out of the cab following the first collision, and that Forester's body kept the back of the cab on the driver's side from crushing to the front, as it had on the passenger's side. It was Dr. Roberts' opinion that Forester was completely ejected from the cab when the semi-truck later struck his pickup.

On cross-examination, plaintiff's counsel asked Roberts if he was aware that Evans, the driver of the Toyota, not only had survived the accident, but worked in the landscape business following the accident. Roberts responded, "Yes. He's lucky he was wearing his seat belt, both of them. It makes a big difference." Roberts explained that Evans was able to withstand the crash because he was wearing a seat belt, which was a significant factor in his lack of any substantial injury. Plaintiff's counsel then asked, "And you base the fact that he had a seat belt on what, what basis?" to which Roberts responded, "Well, the lack of damage to the interior of his vehicle in front of him, the lack of any head print on his windshield. If he hadn't had a seat belt on, we'd see one of those big spider webs right there in front of his seated position, and it's not there." Counsel then asked Roberts whether he was aware that the highway patrol report indicated the contrary--that Evans was not wearing a seat belt, and Roberts replied, "Sure. That's what she said. Of course, the EMTs said he was. And the damage to his car--there's no way he could have avoided hitting the windshield if he hadn't been wearing his seat belt." When questioned whether he was cognizant of the fact that Evans had been thrown from the vehicle, Roberts answered that he did not think Evans had been ejected, but that he had unbuckled his belt and fallen through the open door.

During redirect examination of Dr. Roberts, defense counsel showed him defense exhibits 24 and 25 for identification, emergency medical services (EMS) patient reports prepared for Evans and Parker, which Roberts testified he had referred to in basing his opinion that the occupants of the Toyota were wearing seat belts. When defendants attempted to introduce the two EMS patient reports into evidence at the close of their case, plaintiff objected, stating there was no way of knowing if the person who completed the forms had personal knowledge concerning whether Evans and Parker were wearing seat belts, nor had defendants laid a proper predicate for admission of the documents into evidence. Defense counsel countered, arguing that the...