RING POWER CORPORATION; DIESEL CONSTRUCTION COMPANY; and MARK DAVID QUANDT, Appellants,
GERARDO CONDADO-PEREZ and NANCY RODRIGUEZ-VENTURA, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Linda H. Babb,
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
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
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.
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.
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 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
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
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 and
significantly swerved to the left-into and across Mr.
Quandt's path of travel- causing the accident.
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.
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 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
the statement inadmissible through the EMS Report, the trial
court granted the motion in limine. 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.
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 ...