final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-19068, Spencer Eig, Judge.
Victoria Méndez, City Attorney, and Eric J. Eves,
Assistant City Attorney and Joseph T. Murray III, Assistant
City Attorney, for appellant.
Steinbaum, P.A., and Sarah Steinbaum, for appellee.
Holland & Knight, LLP, and Frances Guasch De La Guardia;
Miriam Ramos, City Attorney, for City of Coral Gables, as
FERNANDEZ, LINDSEY and GORDO, JJ.
City of Miami appeals the entry of final judgment in favor of
Juanita Kho in this negligence action. We conclude that the
trial court's denial of the City's motion for
directed verdict and entry of judgment for Kho were based on
inadmissible evidence. We reverse and remand with
instructions that judgment be entered in favor of the City.
AND PROCEDURAL BACKGROUND
sued the City for negligence following a trip-and-fall
accident in 2010 on a City sidewalk. The subject sidewalk had
an asphalt patch, which was one-and-a-quarter inches lower
than the adjoining concrete slab. Kho alleged that this
difference in elevation was a "dangerous and defective
condition," which caused her to fall. In order to prove
her case, Kho was required to show that the City had either
actual or constructive knowledge of the sidewalk's
trial, Kho was unable to prove that the City had actual
knowledge of the condition of the sidewalk. Kho then sought
to prove constructive knowledge using a Google Maps
photograph of the sidewalk at issue, which was dated November
of 2007. Kho wanted to use the photograph to show that the
condition had existed since then and that the City should
have known about it.
to trial, the City filed a notice of objection to the
admission in evidence of any internet photograph or map
without the proper authentication. At the hearing on both
parties' motions in limine, the City set forth its
argument for exclusion of the Google Maps photograph. The
City argued that Kho would be unable to lay the proper
foundation to authenticate the image, as no one with
knowledge of the sidewalk's condition on the date of the
photograph would be testifying. During that proceeding, the
trial court made clear that the Google Maps photograph would
need to be authenticated "like any other
the City's objection at trial, the trial court
acknowledged that the photograph was not self-authenticating
under Florida Statutes section 90.902 and that testimony
would be required to lay the proper foundation. Kho
introduced the photograph through her expert who testified
that there was no substantial difference between the Google
Maps photograph and a photograph taken of the same location
on the date of Kho's fall. The expert had not visited the
subject location prior to 2010. No testimony was presented
from anyone with personal knowledge of the sidewalk's
condition in November of 2007. Kho also did not introduce
testimony from a Google Maps representative or anyone with
control over or personal knowledge of the Google Maps system.
Based on the lack of foundation and authentication, the City
objected to the admissibility of the evidence. The trial
court summarily overruled that objection and admitted the
photograph in evidence without any additional testimony.
close of Kho's case in chief, the City moved for directed
verdict arguing that Kho had failed to prove either actual or
constructive knowledge. The trial court partially denied the
City's motion for directed verdict, finding that the
Google Maps photograph evidenced constructive knowledge. The
jury found the City liable and awarded Kho $90, 000. The City
then moved to set aside the ...