White v. Consolidated Freightways Corp.

• Decision Date: 25 September 2000
• Docket Number: No. 1D99-3143.,1D99-3143.
• Citation: 766 So.2d 1228
• Parties: Larry L. WHITE, and Consuella White, his wife, Appellants, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, d/b/a CF Motor Freight, a Delaware corporation; and George Dickson, Appellees.
• Court: Florida District Court of Appeals

766 So.2d 1228

Larry L. WHITE, and Consuella White, his wife, Appellants, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, d/b/a CF Motor Freight, a Delaware corporation; and George Dickson, Appellees.

No. 1D99-3143.

District Court of Appeal of Florida, First District.

September 25, 2000.

James T. Miller, Jacksonville, for Appellants.

Victor M. Halbach, Jr. and L. Johnson Sarber, III, Jacksonville, for Appellees.

JOANOS, J.

Appellant, Larry White, appeals the final judgment and the order denying his motion for new trial with regard to his lawsuit for recovery for injuries he sustained in a motor vehicle collision. The issues presented are (1) the trial court's denial of appellant's motion for mistrial predicated on improper comments made by appellees' counsel during opening statements, (2) the trial court's admission of testimony by appellee George Dickson concerning his past driving practices, and (3) the trial court's comment to the jury concerning appellants' rebuttal testimony. We reverse as to the first issue, making it unnecessary to address the remaining points raised on appeal.

On March 8, 1996, appellants filed a personal injury action in connection with a September 14, 1995, motor vehicle accident which occurred on Interstate Highway 95 (I-95) in Nassau County. Although the named defendants included Bryan Crane, Andrew Oresto, Regina Bradford, George Dickson, and Consolidated Freightways Corporation (CF), this appeal involves only appellees CF and George Dickson, the driver of the CF tractor-trailer rig which allegedly caused this chain reaction accident. According to the parties' pretrial stipulation, the accident occurred in the following manner:

Regina Bradford and Andrew Oresto were southbound on I-95. The vehicle operated by Larry White, in which Carlous Faircloth was a passenger, was proceeding northbound on I-95. The Consolidated Freightways truck was exiting or preparing to exit from a weigh station onto southbound I-95. George Dickson, Jr., as operator of the Consolidated Freightways truck, is alleged to have been negligent in improperly moving towards or into the southbound lanes of I-95 in front of the Oresto and Bradford vehicles. Andrew Oresto is alleged to have been negligent in moving from the right through lane to the left through lane in front of Regina Bradford in response to the movements of the Consolidated Freightways truck. Regina Bradford is alleged to be negligent in speeding or proceeding too fast for the roadway conditions and in failing to control her vehicle in response to the movements of the Oresto and Consolidated Freightways vehicles. Regina Bradford crossed the median and struck the White/Faircloth vehicle in the oncoming lane.

Trial commenced April 27, 1999. During opening statements, appellees' counsel advised the jury thusly:

You'll also hear the testimony of Investigating Highway Patrolman C.C. Barclay who looked at the physical evidence, he talked to everyone who was there; I think the evidence will show that no one claimed that Mr. Dickson had anything to do with this accident at the scene of the accident.

. . . .

After he was there for a while and had told the police officer what he saw, then he was allowed to proceed with his trip, and Mr. Dickson will tell you that the first time he heard that anybody was claiming that he had anything to do with this accident was long after, months after it occurred.

After the opening statements were completed and the jury was excused from the courtroom, respective counsel for Mr. Oresto, for Ms. Bradford, and for appellant, all moved for a mistrial on the ground that appellees' counsel stated that no one at the accident scene told the investigating officer that Mr. Dickson, CF's driver had anything to do with the accident. Appellant's counsel stated in part:

MR. ATTER: Your Honor, if I may, I would also like to make a similar motion. I was really very surprised when I heard Mr. Halbach make the comment. And the comment that he made was that you'll hear from Officer Barclay that no one at the scene claimed to Officer Barclay that Mr. Dickson was involved in this accident at all....

Officer Barclay, I can go to his deposition, if need be, but he was very clear in his deposition that everything he did at that scene, at that accident, was during the course of an accident investigation, and all comments and all interviews were done accordingly.

The implication is more than just an implication. It is an outright statement that Mr. Dickson couldn't have done anything wrong because no one told the investigating officer he did anything wrong.

Prior to the court's ruling on the motions for mistrial, the following ensued:

THE COURT: It is the plaintiffs' request that I declare a mistrial and you delay the trial for another year; is that right?

MR. PARKS: No, not delay it another year. I don't want that.

THE COURT: Well, you can't get on the calendar for the remainder of this year; I can tell you that.

MR. PARKS: Okay. I've got to make the objection, Your Honor, because I think what the jury is left with is Mr. Dickson didn't get the ticket.

. . . .

MR. BROWN: Your Honor, maybe during the recess we can check with the court reporter.

THE COURT: Why don't we do that and we'll come back in about ten minutes, and we'll decide what to do. To a large extent it is your trial, and if you, the plaintiffs, who are seeking relief in this court, believe that an improper statement was made, then I am inclined to go along with it. So let's come back in about ten minutes.

(Recess)

THE COURT: Back on the record. Let me just make sure that I understand what we're addressing. We have had Mr. Halbach's statement that he made in opening read back, and Florida Statute 316.066 says that no accident report or statements made by any persons at an accident shall be used as evidence in any trial, civil or criminal.

Now is that the basis for the plaintiffs' motion for mistrial?

MR. PARKS: It is.

MR. ATTER: It is on behalf of Mr. White and Mr. Faircloth.

THE COURT: And do the plaintiffs believe that a curative instruction is insufficient for us to go forward with this trial?

With the exception of appellants' counsel, the attorneys accepted the trial court's proposed remedy. However, appellants' counsel stated he did not believe a curative instruction would be sufficient to remove the impression left in the minds of the jurors by the improper statements made by appellees' counsel.¹ Appellants' counsel agreed that it was the trial court's prerogative to determine whether a curative instruction would be an appropriate remedy, and indicated the language of the proposed instruction was satisfactory. However, appellants' counsel stated expressly that he did not concede that a curative instruction would be sufficient.

The trial court gave the following curative instruction:

THE COURT: ...

Before we begin with the presentation of evidence, I would like to give you an initial instruction from the bench.

During the opening presentation there may have been some mention of statements made to the law enforcement officer who investigated the accident at the scene of the accident. Such statements, if made, cannot be considered by you as evidence, and you shall disregard any mention of statements made at the scene of the accident and decide this case only on the evidence which will be presented to you this week.

The evidence at trial revealed that on the morning of the accident, a flatbed trailer loaded with heavy machinery was parked on the shoulder of the acceleration ramp used by trucks leaving a Nassau County weigh station to enter the southbound traffic of I-95. Appellee Dickson, driver of a CF tractor-trailer rig, went by the parked flatbed truck as he left the weigh station to travel south on I-95. Mr. Oresto, driver of a Ford pickup truck, was traveling south in the right lane of I-95. He testified that as he passed the exit lane of the weigh station, he observed the CF truck cross over the merge lines and come out fast as it moved to enter the traffic flow. Mr. Oresto turned his pickup truck to the left. As he pulled into the left lane of south I-95, he became aware of Ms. Bradford's car already traveling in the left lane. When the Oresto vehicle moved toward Ms. Bradford's vehicle in the right lane, Ms. Bradford turned left to avoid a collision. Within seconds, Ms. Bradford's vehicle went into the grass median, crossed the median, and struck the vehicle being driven by appellant in the north-bound lane of I-95.

The jury found Mr. Oresto to be one hundred percent negligent with regard to the accident and damages incurred by appellants. Appellants filed a motion for new trial, predicated in part on the comments made by appellees' counsel during his opening statement to the jury. The trial court denied the motion, and entered final judgment in favor of appellees CF and George Dickson.

Appellant contends the trial court erred in denying the motion for mistrial. Appellant further contends the comments made by appellees' counsel violated the accident report privilege, and improperly suggested to the jury that the Florida Highway Patrol investigator determined that appellee Dickson was not at fault. Appellants contend the motion for mistrial, made after opening statements were concluded and out of the presence of the jury, satisfied the purposes of the contemporaneous objection rule, and further contend their counsel did not abandon the motion for mistrial, and did not concede the curative instructive would cure the error. Appellants assert the comments were not harmless, because they implied that appellants' witnesses fabricated their testimony that Mr. Dickson's actions caused the chain of events which led to the accident. In response, appellees assert the issue was waived, because appellants failed to raise a contemporaneous objection to defense counsel's comments, and did not move for mistrial until the conclusion of all four opening statements,...