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City of Miami v. Kho

Florida Court of Appeals, Third District

October 16, 2019

City of Miami, Appellant,
v.
Juanita Kho, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An 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.

          Sarah 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 amicus curiae.

          Before FERNANDEZ, LINDSEY and GORDO, JJ.

          GORDO, J.

         The 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Kho 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 condition.

         At 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.

         Prior 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 photograph."

         Upon 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.

         At the 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 ...


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