Ring Power Corp. v. Condado-Perez, Case No. 2D16-353

CourtCourt of Appeal of Florida (US)
Docket NumberCase No. 2D16-353,Case No. 2D16-397
Decision Date07 April 2017

and MARK DAVID QUANDT, Appellants,

Case No. 2D16-353
Case No. 2D16-397


April 7, 2017



Appeal from the Circuit Court for Pasco County; Linda H. Babb, Judge.

Carrie Ann Wozniak of Akerman LLP, Orlando; and Katherine E. Giddings of Akerman LLP, Tallahassee, for Appellants.

Barbara Green of Barbara Green, P.A., Coral Gables; and Betsey T. Herd of Morgenstern & Herd, P.A., Tampa, for Appellees.

BLACK, Judge.

In these consolidated appeals, Ring Power Corporation, Diesel Construction Company, and Mark David Quandt (collectively, Ring Power) challenge the judgments entered in favor of Gerardo Condado-Perez (Mr. Condado) and Nancy

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Rodriguez-Ventura (Ms. Rodriguez). Ring Power contends that two evidentiary rulings of the trial court were erroneous and contributed to the verdict in favor of Mr. Condado and Ms. Rodriguez. We agree with Ring Power, reverse the final judgments, and remand for a new trial. Because we reverse the final judgments, we also reverse the costs judgments predicated on those judgments.1

The underlying negligence action arose out of a motor vehicle accident that occurred on the afternoon of December 8, 2012. While in the course and scope of his employment with Ring Power, Mr. Quandt was driving a large service truck owned by Diesel Construction northbound on I-75 in Pasco County. Mr. Quandt's truck collided with a Ford Expedition driven by Mr. Condado and occupied by Ms. Rodriguez, which was also travelling northbound on I-75. Mr. Quandt's truck then collided with a third vehicle. It was undisputed that there was a mattress in the northbound lanes of the interstate, causing cars to stop or swerve unexpectedly. Further, the parties agreed that there were two northbound lanes of I-75, a median between the north and southbound lanes, and a narrow shoulder adjacent to that median. The agreed-upon facts end there; the parties gave opposing versions of what occurred.

Mr. Condado alleged that he did nothing to contribute to the accident. He claimed that for two or more miles prior to the accident he had been travelling in the left lane. He stated that he saw traffic slowing ahead of him due to someone pulling a mattress out of the roadway and claimed he did not suddenly swerve from the right lane

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into the left lane in front of Mr. Quandt's vehicle. Mr. Condado testified that he saw Mr. Quandt's vehicle directly behind him; he alleged that Mr. Quandt was driving too fast and following too closely. When it appeared that Mr. Quandt's vehicle was going to rear-end Mr. Condado's, Mr. Condado steered his vehicle left, into the narrow shoulder. He testified that because of the narrowness of the shoulder, he was unable to completely exit the left lane of the interstate. He further testified that upon steering his vehicle into the left shoulder, the rear of his vehicle was forcefully struck by Mr. Quandt's large service truck, causing Mr. Condado's vehicle to roll over. As a result of the roll over, Mr. Condado and Ms. Rodriguez suffered significant injuries.

Conversely, Mr. Quandt claimed that the accident was caused entirely by Mr. Condado suddenly and unexpectedly swerving from the right lane into the left lane and then into the left shoulder, directly into Mr. Quandt's path of travel. Mr. Quandt testified that the mattress was less than 100 yards away when the traffic in front of him reacted by slowing and stopping. He testified that he was able to reduce his speed significantly and that he attempted to avoid the collision with Mr. Condado's vehicle by moving left into the shoulder and median. But because Mr. Condado swerved further into the median in front of him, the accident was unavoidable.

Each party called an expert witness to advance his respective theory of the case. Mr. Condado called Dr. Elliott Stern, a professional engineer, who concluded that Mr. Quandt caused the accident by driving too fast for the conditions and the surrounding slowing vehicles. Mr. Quandt called Arnold Wheat, an accident investigator certified in traffic reconstruction, who concluded that Mr. Condado's vehicle dramatically

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and significantly swerved to the left—into and across Mr. Quandt's path of travel—causing the accident.

The critical evidentiary rulings that Ring Power submits necessitate a new trial both involve an alleged admission by Mr. Condado made to Kyle Paton, a Pasco County Fire Rescue paramedic and emergency medical technician, who arrived on the accident scene shortly after 911 was called. In addition to providing medical assistance to Ms. Rodriguez, Mr. Paton spoke with Mr. Condado about the accident. Based on that conversation, Mr. Paton prepared a mandatory patient care report (EMS Report). The EMS Report provided that "Husband states he swerved to avoid a mattress in the road and lost control of the car and went off the road" (Mr. Condado's statement). Mr. Paton prepared the EMS Report on the day of the accident.

Prior to trial, Mr. Condado filed a motion in limine to prevent the above-quoted statement from being introduced as evidence. Although he stipulated to the authenticity of the EMS Report, he argued that the statement within the EMS Report was not trustworthy because it referred to Mr. Condado as Ms. Rodriguez's "husband," but the two were not married. Mr. Condado also argued that the statement was inadmissible because it lacked a proper foundation; he claimed that he is not a proficient English speaker and denied making the statement at all. Ring Power filed a response to the motion in limine noting that Mr. Condado testified in deposition that he had been married to Ms. Rodriguez for ten years. Ring Power further argued that Mr. Condado's denial of the statement was a matter of weight and credibility for the jury rather than admissibility. Ring Power contended that the statement was admissible as a spontaneous statement, excited utterance, and admission by a party opponent pursuant

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to sections 90.803(1), (2), and (18), Florida Statutes (2015). Ring Power also noted that although the statement was hearsay within hearsay, it was admissible because both the EMS Report and Mr. Condado's statement within the report were subject to an exception under section 90.803.

Finding the statement inadmissible through the EMS Report, the trial court granted the motion in limine.2 At trial, the court denied Ring Power's request to reconsider the ruling on the motion in limine and its request to consider the EMS Report in its entirety as a recorded recollection pursuant to section 90.803(5). The court also excluded from evidence Mr. Paton's deposition testimony, which included a discussion of Mr. Condado's statement and confirmed that Mr. Paton included in his report what he had been told by Mr. Condado at the scene.

In opening statements, Mr. Condado argued that although the defense would suggest that Mr. Condado swerved and caused the accident, the evidence would prove otherwise. At that time, Ring Power renewed its request to use Mr. Condado's statement in the EMS Report based on Mr. Condado's opening statement. The court denied the request.

During trial, Mr. Condado testified that he was very nervous after the accident and thought he was going to die when his vehicle was rolling over. Ring Power again advanced its argument that Mr. Condado's statement in the report was a spontaneous statement or excited utterance and should be admitted. It marked Mr.

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Paton's deposition transcript and video as well as the unredacted EMS Report as exhibits and requested that the court admit them and publish them to the jury. The court declined to reconsider its prior ruling and considered the exhibits as proffers. At that time, Mr. Condado proffered Mr. Paton's deposition cross-examination testimony. The redacted EMS Report was introduced not by Ring Power but by Mr. Condado; it was admitted into evidence without objection. Subsequently, the trial court again declined Ring Power's request to reconsider its prior ruling on the...

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