Botte v. Pomeroy

497 So. 2d 1275, 11 Fla. L. Weekly 2363
CourtDistrict Court of Appeal of Florida
DecidedNovember 12, 1986
Docket84-2438, 85-681
StatusPublished
Cited by18 cases

This text of 497 So. 2d 1275 (Botte v. Pomeroy) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Botte v. Pomeroy, 497 So. 2d 1275, 11 Fla. L. Weekly 2363 (Fla. Ct. App. 1986).

Opinion

497 So.2d 1275 (1986)

Robert BOTTE, Appellant,
v.
Robert M. POMEROY, d/b/a South Seas Apartments, and St. Paul Mercury Insurance Company, Appellees.

Nos. 84-2438, 85-681.

District Court of Appeal of Florida, Fourth District.

November 12, 1986.
Rehearing Denied December 19, 1986.

*1276 Goldstein Professional Ass'n, and Elizabeth K. Clarke of Daniels and Hicks, P.A., Miami, for appellant.

Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellees.

ANSTEAD, Judge.

This is an appeal from a jury verdict in favor of the defendants in an action for personal injuries. In an earlier appeal, this court reversed a summary judgment entered for defendants. Botte v. Pomeroy, 438 So.2d 544 (Fla. 4th DCA 1983), rev. denied, 450 So.2d 488 (Fla. 1984). The case then proceeded to trial. Because we believe the trial court erred in a number of important evidentiary rulings, we reverse for a new trial.

Robert Botte was the plaintiff below. The defendants were Robert Pomeroy, owner of the South Seas Apartment complex, and Pomeroy's insurer. The action was predicated on the acts of Jack Edwards, an alleged employee of Pomeroy. On July 27, 1978, Botte, then eighteen years old, suffered an accident of unknown origin which fractured his neck. Edwards found Botte lying on the grounds outside the apartment complex. Apparently believing Botte to have overdosed on drugs, Edwards allegedly moved him about 15 feet to a lighted area near the building. Botte received emergency medical treatment, but it was subsequently determined that at some point after the accident he was rendered a quadriplegic. Botte's initial complaint sought damages against Pomeroy and a number of medical malpractice defendants. Botte's suit against Pomeroy alleged that the actions of Edwards in moving Botte over his objection aggravated his initial injury and caused his paralysis. Pomeroy answered denying Edwards' negligence or that Edwards was his agent or *1277 employee, or any causal connection between Edwards' action and Botte's injury, and raising the affirmative defenses of comparative negligence and immunity under the Florida Good Samaritan Act, Section 768.13, Florida Statutes (1981).

Initially, the defendants moved for and were granted a summary judgment on the grounds of immunity under the Good Samaritan Act, which immunizes certain voluntary acts of assistance to injured persons. This court reversed, noting that factual issues existed regarding whether the volunteered assistance was rendered "without objection" and in an "ordinary reasonably prudent fashion" as required by the statute. 438 So.2d at 545. The case was tried in September 1984, resulting in a jury verdict for the appellees finding immunity under the Good Samaritan statute. The contested evidentiary rulings will be discussed in sequence.

At trial Botte moved to call Jack Edwards as an adverse party in order to examine him with leading questions and to impeach his credibility with previous sworn testimony in three important areas: whether Edwards was an employee of Pomeroy, whether Edwards actually moved Botte, and whether Edwards knew that Botte was not to be moved because of his injuries. The trial court denied the motion, apparently on the ground that Edwards was not named as a party, but noted that Botte could call him to the stand and, if Edwards' testimony actually proved prejudicial, then treat him as an adverse witness for purposes of impeachment. When Edwards had completed his testimony, Botte again moved to have him declared an adverse witness on the basis that his testimony was prejudicial and contrary to his prior statements. The court again denied the motion.

Under Florida law a party need not be named in the pleadings to be called as an adverse party, so long as the party occupies an adverse position at trial to the calling party and could have been named as a party. Smith v. Fortune Insurance Co., 404 So.2d 821, 823 (Fla. 1st DCA 1981). Edwards meets the Smith criteria for adversity; each factor identified by that court as significant is present here. Under the Smith analysis, with which we concur, the trial court erred in not allowing Botte to call Edwards as an adverse party. In addition, under Florida's Evidence Code, once Edwards took the stand and gave his testimony, which both parties acknowledge was adverse, Botte was entitled to offer the prior inconsistent deposition testimony as impeachment. See § 90.608(2), Fla. Stat. (1983). Although Edwards' employee status was an issue at the trial, this factor also supports Botte's claim that Edwards could have been called as an adverse party. A non-party employee of a named party may be called as an adverse party witness. Medina v. Variety Children's Hospital, 438 So.2d 138 (Fla. 3d DCA 1983). In light of the factual conflicts between what Edwards said on the stand and in deposition, and the relevance of these conflicts to the critical issues at trial of agency and Edwards' actions and knowledge at the time he allegedly moved Botte, we believe that the trial court's erroneous rulings constituted reversible error.

For the same reason that Edwards could have been called as an adverse party, the court erred in excluding as hearsay the testimony of police officer Michael Gillo regarding statements Edwards had made to him in the course of the investigation. The record reflects that Gillo would have testified that Edwards told him he was "making rounds" of the apartment complex when he found Botte, that Botte indicated to him that he was hurt, and that he moved Botte and removed his pants. The defendants objected to the statements as hearsay. In view of the contested issues of employment and Edwards' actions, these statements should have been admitted under the admissions exception to the hearsay rule. In Smith v. Fortune Insurance Co., cited above, the court reached the conclusion that statements by a non-party declarant to a police officer may come in as admissions where the declarant meets the criteria of adversity. 404 So.2d at 823. In addition, the statements should come in as vicarious *1278 admissions under Section 90.803(18), Florida Statutes:

ADMISSIONS. — A statement that is offered against a party and is:
(a) His own statement in either an individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth;
(c) A statement by a person specifically authorized by him to make a statement concerning the subject;
(d) A statement by his agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship.

(Emphasis added.) See also Poitier v. School Board of Broward County, 475 So.2d 1274 (Fla. 4th DCA 1985). Since retrial is necessary, we do not consider whether the appellant may have waived his right to appeal the court's ruling on Gillo's statements by failing to assert the correct basis for admissibility at trial.

Botte also claims error in the trial court's admission of evidence of Botte's transient lifestyle and history of drug abuse. Prior to the trial, counsel for Botte had filed an unsuccessful motion in limine to exclude reference to prior drug consumption. Botte was cross-examined extensively about his experience prior to the day of the accident with selling and using psilocybin mushrooms. Botte's use of drugs was highlighted in the opening and closing statements of the defense.

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Bluebook (online)
497 So. 2d 1275, 11 Fla. L. Weekly 2363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/botte-v-pomeroy-fladistctapp-1986.