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Sajiun v. Hernandez

Florida Court of Appeals, Fourth District

August 23, 2017

MARGARET SAJIUN, as Personal Representative of the ESTATE OF JOSE ALBERTO SOTO SANTIAGO, Appellant,

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jaimie Goodman, Judge; L.T. Case No. 502012CA019229XXXXMB.

          Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach; Carlos A. Bodden and W. David Bennett of Ellis, Ged & Bodden, P.A., Boca Raton; and Laurence U.L. Chandler, Jr., Boca Raton, for appellant.

          Todd R. Ehrenreich and Noel F. Johnson of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for appellee.

          Ciklin, J.

         After a wrongful death jury trial, the personal representative of the decedent's estate recovered nothing. She believes that certain improper evidence resulted in the defense verdict, and she challenges several of the trial court's rulings. We find the trial court did not abuse the wide and sound discretion afforded to trial judges in these types of evidentiary rulings, and we affirm.

         This case arose from a collision between a motorcycle driven by the decedent, Jose Alberto Soto Santiago ("motorcycle driver"), and a truck driven by the defendant, Daniel Hernandez ("truck driver"), resulting in the death of Santiago. During trial, the trial court permitted the introduction of the following evidence over the plaintiff's objection: 1) witness testimony regarding the speed the decedent motorcycle driver traveled on his motorcycle in the moments preceding the accident; 2) evidence of the weight of the truck, which was used by the defense expert to calculate the motorcycle's speed at impact; and 3) statements the motorcycle driver's child made to a psychotherapist regarding an argument between the decedent and his girlfriend shortly before the accident.

         "A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court's ruling on evidentiary matters will not be overturned." Kellner v. David, 140 So.3d 1042, 1046 (Fla. 5th DCA 2014) (citation omitted). "The trial court's discretion, however, is limited by the rules of evidence." Wyatt v. State, 183 So.3d 1081, 1084 (Fla. 4th DCA 2015). "[A] trial court's decision does not constitute an abuse of discretion 'unless no reasonable person would take the view adopted by the trial court.'" McCray v. State, 71 So.3d 848, 862 (Fla. 2011) (quoting Peede v. State, 955 So.2d 480, 489 (Fla. 2007)). Stated another way, "[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Bass v. City of Pembroke Pines, 991 So.2d 1008, 1011 (Fla. 4th DCA 2008) (citation omitted). We review each of the challenged evidentiary issues in turn, applying this limited-and very well established-scope of review.

         Testimony Regarding Speed of Motorcycle

         Before trial, the plaintiff moved in limine to exclude the testimony of three witnesses the defense had listed but who did not actually see the accident, arguing that their testimony was not relevant, and that if it was, any probative value was substantially outweighed by the prejudicial effect of the testimony. The trial court deferred ruling on one witness, and denied the motion without prejudice with respect to the other witnesses.

         One of the witnesses testified at trial that he had operated motorcycles since 1980. Based on his familiarity with motorcycles, he could tell the difference between the sounds emitted by the engines of a Japanese motorcycle and a Harley Davidson. A Harley Davidson engine has a distinct sound which has been patented.

         Shortly before the accident, the witness was sitting in his backyard. A fence blocked his view of the street, but he heard the sound of a motorcycle engine. Defense counsel asked the witness what he heard, and he responded, "A motorcycle traveling at a high rate of speed, revved up." The court denied plaintiff's motion for mistrial. During a voir dire of the witness, he explained that his testimony was based on his years of experience with hearing motorcycles, and that he did not have any specialized training in the sounds of motorcycle engines. The court ruled that the witness may "say based on what he heard and based on his familiarity with the motorcycles that it was going at a high rate of speed, " but that he may not "speculate or guess what the speed was." The witness then testified that he had previously heard "a Japanese motorcycle rev its engine real high . . . [Y]ou can hear him going through his gears. And when it's revving really loud . . ., that means [it is] traveling at a high rate of speed." He equated that sound to the sound he heard the day of the accident. The witness testified that shortly after he heard the sound of a motorcycle revving its engine, he heard a "popping" noise, as if the motor shut off. He went to investigate and observed that a Japanese motorcycle had been involved in an accident.

         Two other defense witnesses, a mother and daughter traveling together, encountered the motorcycle and testified about their observations. The daughter recalled that the "noise of [the] engine" drew her attention to the motorcycle. The motorcycle was "go[ing] by really fast" and "cutting off cars." Within minutes of losing sight of the motorcycle, she came upon the accident scene. The mother testified that the motorcycle was "making a very zoom noise, you know, as in accelerating very quickly, " that the motorcycle driver "sped off very rapidly, " and that he was traveling at a "much higher" rate of speed than the mother was driving, which was somewhere between 30 and 45 miles per hour. She and her daughter were so startled by the motorcycle that they commented to one another regarding "the noise, the speed, the closeness to our car." After the motorcycle passed her, it took between thirty and ninety seconds before she came upon the accident scene.

         The parties' experts disputed the speed the motorcycle was traveling. The plaintiff's accident reconstruction expert testified that the motorcycle driver was traveling an average of fifty-five miles per hour, but going about sixty miles per hour at the time of impact. The defense expert opined that the motorcycle driver was going about ninety to ninety-five miles per hour at the time he braked, but could have been going ...

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