CYNTHIA WAINER, APPELLANT,
v.
AIDA BANQUERO AND ERNESTO BANQUERO, APPELLEES
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In a personal injury case arising from a motor vehicle accident, the appellate court reversed and remanded for a new trial, finding that prejudicial statements made by the defendant during testimony—that she received no traffic citation and had never been in an accident before—bolstered her credibility and improperly suggested police fault-finding, despite curative jury instructions.
The court held that the defendant's statements suggesting she did not receive a traffic citation and had never been in an accident constituted prejudicial error warranting reversal. The court concluded that these remarks bolstered the defendant's testimony and improperly implied police fault-finding, and that the trial court's curative instructions were insufficient to remedy the prejudice.
[1] Statements suggesting a driver did not receive a traffic citation in connection with an accident may constitute prejudicial error warranting reversal.
[2] Evidence of a party's past driving record should not be made part of the jury's considerations.
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Join FLexlaw to unlock all legal intelligence“statements suggesting that a driver did not receive a traffic citation in connection with an accident may constitute prejudicial error warranting reversal”
Establishes the legal standard for evaluating defendant's comments about lack of citation
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Join FLexlaw to unlock all legal intelligenceCynthia Wainer was rear-ended by a vehicle driven by Aida Banquero. Wainer testified she had been in the same lane for approximately four traffic sign…
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DELL, Judge.
Cynthia Wainer appeals the trial court’s denial of her motion for mistrial and the subsequent order denying her motion for a new trial based on statements made by Aida Banquero during trial. Appellant argues that Mrs. Banquero’s remarks prejudiced the jury and deprived her of a fair trial. We agree.
Appellant claimed that she sustained personal injuries when she was rear-ended by a motor vehicle driven by Mrs. Banquero and owned by her husband, Ernesto Banque-ro.
At trial, appellant testified that she had been driving in the same lane for approximately four traffic signals and was stopped at a red light for at least five seconds when she was rear-ended.
In contrast, Mrs. Ban-quero testified that appellant’s car passed her on the right, cut her off and then, without functioning brake lights, made an unexpected stop at a green light. Mrs. Banquero braked, but slid forward because the road was wet, and hit appellant’s car. During the course of Mrs. Banquero’s testimony, she stated, “[Wainer] was very excited and she talked with the policeman inside of the car, but we don’t have nothing to repair or loss — we don’t have no ticket for that accident.” The trial court cautioned the witness that she could not discuss that issue, and instructed the jury to disregard the comment. On re-direct examination, counsel asked, “Are you an expert in how long — how much time elapsed while an accident is unfolding?” Mrs. Banquero responded, “The first time in my life I have an accident was this one.” The trial court sustained the objection to this statement and again instructed the jury to disregard Mrs. Banquero’s comment. Counsel’s motion for a mistrial based on these two remarks was denied.
The jury returned a verdict apportioning liability between appellant and appellees at forty percent and sixty percent respectively, and found that appellant did not sustain any permanent injury as a result of the accident.
Although testimony regarding whether a party is charged with a traffic violation does not constitute per se reversible error, see Budget Rent A Car Sys., Inc. v. Jana, 600 So. 2d 466, 468 (Fla. 4th DCA), rev. denied, 606 So. 2d 1Í65 (Fla.1992), statements suggesting that a driver did not receive a traffic citation in connection with an accident may constitute prejudicial error warranting reversal. See Spanagel v. Love, 585 So. 2d 317, 318 (Fla. 5th DCA 1991) (citing Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787, 790-91 (Fla. 1st DCA 1989)). Further, “evidence of a [party’s] past driving record should not be made part of the jury’s considerations.” Dade County v. Carucci, 349 So. 2d 734, 735 (Fla. 3d DCA 1977).
The parties provided completely different versions concerning the accident. Their credibility and the jury’s resolution of the conflicting testimony made appellee’s comments an important factor in the jury’s determination. When appellee testified that she did not receive a citation and had never been in an accident before, she bolstered her testimony and by implication suggested that the police officer did not find her driving at fault. Based on this record, we cannot conclude that the jury’s verdict was not affected by Mrs. Banquero’s testimony or that the trial court’s instruction to the jury to disre gard her remarks cured the error. See Royal Indem. Co. v. Muscato, 305 So. 2d 228 (Fla. 4th DCA 1974), cert. denied, 321 So. 2d 76 (Fla.1975); Albertson v. Stark, 294 So. 2d 698, 699 (Fla. 4th DCA), dismissed, 299 So. 2d 602 (Fla.1974).
Accordingly, we reverse and remand this cause for a new trial.
REVERSED and REMANDED.
GUNTHER and KLEIN, JJ., concur.
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Diaz v. Fedex Freight E., Inc., 114 So. 3d 224 (Fla. 5th DCA 2012)…723 So. 2d 871, 871 (Fla. 1st DCA 1998) (holding that curative instruction did not cure prejudice of an officer’s testimony implying that one of the parties had received a traffic citation as a result of the collision); see also Wainer v. Banquero, 713 So. 2d 1104, 1105 (Fla. 4th DCA 1998) (holding that curative instruction was insufficient to overcome prejudice caused by the defendant’s testimony that she was not ticketed for accident); Ryder Truck Rental, Inc. v. Johnson, 466 So. 2d 1240, 1241 (Fla. 1st DCA…
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Vantran Indus. v. Ryder Truck Rental, Inc., 890 So. 2d 421 (Fla. 1st DCA 2004)…tion following the accident,and concluding that the trial court erred in denying the appellant’s motion in limine to preclude the appellee from questioning her and the investigating officer as to whether she received a citation); Wainer v. Banquero, 713 So. 2d 1104, 1105 (Fla. 4th DCA 1998) (holding that the trial court reversibly erred in denying the appellant’s motion for mistrial given the appellee’s testimony that “we don’t have no ticket for that accident,” notwithstanding the fact that the trial court in…
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Rierson v. Deveau, 273 So. 3d 1041 (Fla. 3d DCA 2019)…jection. As there is some legal authority that “testimony regarding whether a party is charged with a traffic violation does not constitute per se reversible error,” we turn our analysis to whether the error is harmless.3 Wainer v. Banquero, 713 So. 2d 1104, 1105 (Fla. 4th DCA 1998). Appellees, as “the beneficiary of the error [have] the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, [appellees, as] the beneficiar[ies] of the error must prove th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Albertson v. Stark, 294 So. 2d 698 (Fla. 4th DCA 1974)
- Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. 1st DCA 1989)
- Royal Indem. Co. v. Phillip J. Muscato et ux., 305 So. 2d 228 (Fla. 4th DCA 1974)
- Budget Rent A CAR Sys., Inc. v. Jana, 600 So. 2d 466 (Fla. 4th DCA 1992)
- Spanagel v. Love, 585 So. 2d 317 (Fla. 5th DCA 1991)
- Williams v. State, 299 So. 2d 602 (Fla. 1974)
- Liberty Mut. Ins. Co. & Howard Indus., Inc. v. Ladislad Zamora & State of Fla., 299 So. 2d 602 (Fla. 1974)
- 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)
- Dade Cnty. v. Georgiana Carucci, 349 So. 2d 734 (Fla. 3d DCA 1977)