MARION COUNTY, APPELLANT,
v.
EDWARD J. CAVANAUGH, ET UX., APPELLEES
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Marion County appeals a jury verdict awarding $400,000 to Edward Cavanaugh and $50,000 to his wife for a back injury from a truck accident. The appellate court reversed and remanded for a new trial on damages only, finding the trial court erred in excluding a surveillance videotape that was relevant evidence of the extent of Cavanaugh's injuries.
The exclusion of the surveillance videotape was error because the tape was relevant evidence offered in the course of the defendant's defense and was not harmless error. The videotape should have been admitted to show the extent to which Cavanaugh's injuries affected his ability to perform physical work, to show he was performing work contrary to his doctor's recommendations, or for impeachment purposes.
[1] A videotape of surveillance showing a plaintiff performing physical activities is relevant evidence in a personal injury case.
[2] Exclusion of relevant videotaped evidence is reversible error if it is not harmless.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the exclusion of the videotape was error. Moreover, having viewed the tape, we cannot say that the failure to allow this evidence was harmless error.”
Establishes that the trial court's exclusion of the surveillance evidence was reversible error because it was relevant and not harmless.
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Join FLexlaw to unlock all legal intelligenceEdward Cavanaugh was injured in an accident when his pickup truck was struck by a garbage truck. He claimed back injuries and was awarded damages by j…
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PER CURIAM.
This is the appeal of a jury verdict awarding $400,000 in damages to appellee Edward Cavanaugh, and $50,000 to his wife, for a back injury he suffered in an accident in which his pickup truck was struck by a garbage truck. Appellant has raised three issues on appeal, only one of which we believe warrants reversal.1 Appellant complains it was error for the trial court to refuse to permit it to introduce a thirty minute videotape of surveillance of the appellee performing a variety of tasks in his yard, including hanging laundry, car repair, gardening or yard work, bending, and lifting. The tape was offered, along with the testimony of a photographer, at midday on Saturday, after appellant had concluded examination of the witness who was not available on Friday afternoon.
Appellees objected to admission of the tape on two grounds. First, they argued the probative value of the tape would be outweighed by its prejudicial effect because the tape was a distillation of some 44 hours of surveillance taken over six days and did not show Mr. Cavanaugh engaged in any prolonged physical activity over an extended or continuous period of time. As counsel characterized the testimony, Mr. Cavanaugh had never testified he could not perform any of the activities shown on the tape and, indeed, testified that he did perform some physical tasks, such as mowing his lawn. Also, appellees argued with some force that appellant’s counsel did not attempt to introduce the videotape until the “11th hour” of the trial because appellant’s counsel had never viewed the tape until Friday night and the trial judge, having had to adjourn court early on Friday because appellant ran out of witnesses or evidence to present, was justified in refusing appellant’s belated attempt to present the videotape to the jury. On this point, we sympathize with the court and with appellee. Appellant’s lack of preparation, which resulted in a tardy and weak proffer of this videotaped evidence to the trial court, while not the stated basis for the court’s ruling, no doubt influenced the court’s decision. The trial court did not review the proffered tape.
Unfortunately, because the videotape was relevant and was offered in the course of presentation of appellant’s defense, we must conclude that the exclusion of the videotape was error. Moreover, having viewed the tape, we cannot say that the failure to allow this evidence was harmless error. The videotape includes several sections of up to fifteen minutes of continuous footage, taken mainly in the course of one day, and shows Mr. Cavanaugh performing a series of physical activities outside his home. Although there is some discontinuity because Mr. Cavanaugh would go inside from time to time for short periods, the proffered tape shows him engaged in several rather vigorous activities over about a two-hour period. Either to show the extent Mr. Cavanaugh’s injuries have affected his ability to do physical work, to show that he is doing physical work harmful to his back in violation of his doctor’s recommendations, or even, contrary to appellees’ argument, for impeachment, the videotape was relevant evidence. Appellant should have been allowed to show it to the jury. See Herbert v. Garner, 78 So. 2d 727 (Fla.1955).
Because appellant concedes there was no appealable error in the jury’s determination of liability and because no harmful error occurred in the trial except for the exclusion of the videotaped evidence pertaining to the extent of Mr. Cavanaugh's back injury, we remand for a new trial on damages only.
REVERSED in part; REMANDED.
PETERSON, GRIFFIN and DIAMANTIS, JJ., concur. . We see no error in the court’s ruling on the seatbelt issue. If the jury instruction on collateral sources was error, it was clearly harmless.
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Citator
Cited By
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Williamson v. Superior Ins. Co., 746 So. 2d 483 (Fla. 2d DCA 1999)…r. Williamson engaged in physical activities, these items are relevant to the issue of damages and should be admitted at any subsequent proceedings. See Otis Elevator Co. v. Youngerman, 636 So. 2d 166 (Fla. 4th DCA 1994); Marion County v. Cavanaugh, 577 So. 2d 599 (Fla. 5th DCA 1991). Because the records and tape which we conclude should have been admitted might also have relevancy on the questions of permanency and causation as well as the amount of damages, all of these issues should be retried. Accordingl…
Authorities Cited
- Herbert v. Garner, 78 So. 2d 727 (Fla. 1955)