DEBORAH A. ELSASS, APPELLANT,
v.
CECIL E. HANKEY, APPELLEE
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In this personal injury case arising from an automobile accident, the Florida appellate court reversed a jury verdict finding no liability and remanded for a new trial. The reversal was based on defense counsel's improper closing argument suggesting the investigating officers did not find the defendant liable, which improperly invoked the accident report privilege.
The court held that defense counsel's statement in closing argument was improper and constituted fundamental error that was not harmless. The jury verdict was reversed and the case remanded for a new trial because the argument improperly invoked the accident report privilege in a negligence case and may have influenced the jury's decision.
[1] In a negligence case arising from a traffic accident, it is improper for counsel to suggest to the jury that the client was not charged with causing the accident.
[2] The argument that the investigating police officer did not assign fault to a party in a traffic accident case is improper and can be considered fundamental error.
Previewing 2 of 3 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“[C]ommon sense (and experience as well) tells us that to the average juror the decision of the investigating police officer ... is very material to, if not wholly dispositive of, that juror's determination of fault on the part of the respective drivers.”
Establishes the legal principle that police officer determinations of fault are highly influential on jurors in negligence cases and therefore improper for counsel to invoke.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDeborah Elsass was involved in an automobile accident with Cecil Hankey's truck. Investigating officers issued a citation to Hankey for the accident. …
The full statement of facts, procedural history, and disposition for this case are member content.
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GRIFFIN, Judge.
Appellant, Deborah Elsass, appeals an adverse verdict in a personal injury case arising out of an automobile accident. Appellant raises three issues on appeal; we find error only in the lower court’s failure to grant appellant’s motion for mistrial based on a statement made by defense counsel during closing argument.
Prior to and during trial there had been frequent discussions of the accident report privilege and the permissible scope of examination of and testimony by the investigating police officers. The court had even entered an order in limine on the subject.1 Nevertheless, in closing, defense counsel argued to the jury that:
I didn’t hear Mike Richie say it was Cecil Hankey’s fault. I didn’t hear Trooper Ed-sall say it’s Cecil Hankey’s fault....
It has long been clear in Florida that it is improper in a negligence case arising out of a traffic accident for counsel to suggest to the jury that his client was not charged with causing the accident. As the court in Albertson v. Stark, 294 So. 2d 698, 699 (Fla. 4th DCA 1974) explained:
[Cjommon sense (and experience as well) tells us that to the average juror the decision of the investigating police officer ... is very material to, if not wholly dispositive of, that juror’s determination of fault on the part of the respective drivers.
See Estate of Wallace v. Fisher, 567 So. 2d 505 (Fla. 5th DCA 1990); MacNeil v. Singer, 389 So. 2d 232 (Fla. 5th DCA 1980); see also Eggers v. Phillips Hardware Co., 88 So. 2d 507 (Fla.1956); Ryder Truck Rental, Inc. v. Johnson, 466 So. 2d 1240, 1241 (Fla. 1st DCA 1985); Royal Indemnity Co. v. Muscato, 305 So. 2d 228 (Fla. 4th DCA 1974), cert. denied, 321 So. 2d 76 (Fla.1975); Riedel v. Driscoll, 124 So. 2d 42 (Fla. 1st DCA 1960). In this case, the argument was especially egregious in light of the fact that Cecil Hankey was the one to whom the investigating officers issued a citation for the accident.
The making of such an argument to the jury is so serious that it is deemed fundamental but is not per se error. 294 So. 2d at 699. We cannot say the error was harmless in this case. The jury found no liability even though the facts strongly suggested the defendant’s negligent operation of his truck was the cause of the accident and he had no other explanation for how it had occurred. (“I was dumfounded.”) On the other hand, we recognize that the jury may well simply have concluded that the accident did not cause appellant any damage, but there is no way to tell. Appellant is entitled to a new trial.
REVERSED and REMANDED.
PETERSON, C.J., and THOMPSON, J., concur. . Counsel on appeal were not trial counsel.
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Authorities Cited
- Eggers v. Phillips Hardware Co., 88 So. 2d 507 (Fla. 1956)
- Albertson v. Stark, 294 So. 2d 698 (Fla. 4th DCA 1974)
- Clark v. Hofacker, 124 So. 2d 42 (Fla. 1st DCA 1960)
- Royal Indem. Co. v. Phillip J. Muscato et ux., 305 So. 2d 228 (Fla. 4th DCA 1974)
- Ryder Truck Rental, Inc. v. Johnson, 466 So. 2d 1240 (Fla. 1st DCA 1985)
- Est. OF Patricia Wallace v. Fisher, 567 So. 2d 505 (Fla. 5th DCA 1990)
- MacNEIL v. Singer, 389 So. 2d 232 (Fla. 5th DCA 1980)
- Humble OIL & Ref. Co. & St. Regis Paper Co., Inc. v. Vinson Ates and Minnie Ates, 321 So. 2d 76 (Fla. 1975)
- Ronshausen v. Louie L. Wainwright, 321 So. 2d 76 (Fla. 1975)