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Robert Shaver v. Max Carpenter, et al., Case No. 2D13-117 (2nd DCA)

In Shaver, the Second DCA ruled that a jury verdict in favor of the plaintiffs was tainted by two evidentiary errors. The plaintiffs were riding on a motorcycle in an intersection when they were involved in an accident with the defendant's vehicle. The jury apportioned ninety-five percent of the fault to the defendant, and five percent to the plaintiff who was operating the motorcycle.

First, the Second DCA found that the trial court erred when it permitted an investigating officer to testify as to his opinion as to which party violated the right of way. The Second DCA noted that the parties' relative fault was hotly contested at trial. Evidence of the status of the signal at the time of accident was inconclusive. The trial court permitted an officer testify that the defendant had violated the plaintiffs' right of way. The Second DCA cited a Fourth DCA opinion for the proposition that the jury should not be informed of the officer's determination as to who caused the accident and who was cited. While the officer in Shaver did not testify as to who was cited, the Second DCA found that the officer's testimony clearly suggested who would have been testified. This was error.

Second, the Second DCA found that the trial court erred when it permitted the plaintiff to read the defendant's answers to surveillance interrogatories to the jury. The defendant's answers to the surveillance interrogatories revealed that the plaintiff had been surveilled on eight days. The defendant argued that the interrogatory answers should not be read to the jury because the surveillance videos would not be introduced at trial, and therefore, the defendant asserted the answers were not relevant. The defendants additionally argued that the only purpose for reading the interrogatory answers to the jury was to disparage the defendant for "spying" on the plaintiffs. The Second DCA found that the plaintiff's attorney, in closing, did in fact argue to the jury that the defendant spied on the plaintiffs to call them liars and fakes. The Second DCA noted that interrogatory answers may be introduced into evidence, but as with all evidence, the answers must be relevant, meaning they tend to prove or disprove a material fact. The Second DCA found that no reason was presented as to why the interrogatory answers were relevant. The Second DCA further noted that surveillance is common practice in personal injury cases, and it is not improper. The court ruled it was error to introduce into evidence the fact that surveillance was conducted.

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