114 So. 3d 224
Fla. Dist. Ct. App.2012Background
- Appellant Mayra Diaz, as personal representative of the decedent Yuniel Avila Diaz, appeals a final judgment for appellees in a fatal crash between a motorcycle and a FedEx tractor trailer.
- The accident occurred at the Hangar Road and Heintzelman Boulevard intersection in Orlando; decedent was traveling at 59–79 mph in a 45 mph zone and could have avoided the crash if driving at the limit.
- Vincent Jackson, the tractor trailer driver, testified he stopped at the stop sign, a point disputed by appellant’s experts; eyewitnesses could not testify conclusively.
- Prior to trial, the court granted a motion in limine preventing testimony about a citation or fault; the defense nonetheless elicited testimony from Detective Harold Felshaw suggesting no fault by the other vehicle.
- The detective’s testimony violated the in limine order and prompted a motion for mistrial; the court offered a curative instruction but did not grant mistrial.
- A juror later asked whether Jackson had been ticketed for any improper movements; the court declined to answer, reinforcing the prejudice from the detective’s testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Detective Felshaw’s testimony requiring mistrial was improper | Diaz argues the testimony violated the in limine order and prejudiced liability. | Jackson contends curative instruction sufficed and mistrial was unnecessary. | Mistrial required; prejudice not cured |
Key Cases Cited
- Galgano v. Buchanan, 783 So.2d 302 (Fla. 4th DCA 2001) (police officer’s fault determination is highly material to fault)
- Budget Rent A Car Sys., Inc. v. Jana, 600 So.2d 466 (Fla. 4th DCA 1992) (officer’s testimony about citation improper and prejudicial)
- Spanagel v. Love, 585 So.2d 317 (Fla. 5th DCA 1991) (officer’s statement of no improper driving requires new trial)
- Estate of Wallace v. Fisher, 567 So.2d 505 (Fla. 5th DCA 1990) (admission of officer’s testimony regarding issuance of traffic citation prejudicial)
- Albertson v. Stark, 294 So.2d 698 (Fla. 4th DCA 1974) (common-sense view that officer’s determination of fault is material)
- Hulick v. Beers, 7 So.3d 1153 (Fla. 4th DCA 2009) (curative instruction may not cure prejudicial testimony)
- Vantran Indus., Inc. v. Ryder Truck Rental, Inc., 890 So.2d 421 (Fla. 1st DCA 2004) (curative instruction insufficient to counter prejudice)
- Golden v. Tipton, 723 So.2d 871 (Fla. 1st DCA 1998) (curative instruction did not cure prejudice from officer’s testimony)
- Wainer v. Banquero, 713 So.2d 1104 (Fla. 4th DCA 1998) (curative instruction insufficient to overcome prejudice)
- Ryder Truck Rental, Inc. v. Johnson, 466 So.2d 1240 (Fla. 1st DCA 1985) (curative instruction did not countermand prejudice)