       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

    CANDICE JONES, as Personal Representative of the ESTATE OF
                    RYLAND NYE, Deceased,
                           Appellant,

                                     v.

                           MICHAEL ALAYON,
                               Appellee.

                              No. 4D12-4546

                               [April 8, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Eileen O’Connor, Judge; L.T. Case No. 06-21320 04.

  Walter G. Campbell and Kelley B. Stewart of Krupnick, Campbell,
Malone, Buser, Slama, Hancock, Lieberman, P.A., Fort Lauderdale, for
appellant.

   Hinda Klein and Elizabeth A. Izquierdo of Conroy, Simberg, Ganon,
Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.

WARNER, J.

    In this wrongful death action arising out of an automobile accident, the
jury found the decedent at fault for his own death due to his failure to
wear a seatbelt. It awarded fewer damages than the plaintiff sought. On
appeal, the decedent’s estate argues that the court abused its discretion
in admitting hearsay that the decedent’s wife spent the parties’ money on
drugs; abused its discretion in prohibiting the introduction of evidence
that the defendant was a police officer who fled the scene; and erred in
failing to direct a verdict on the seatbelt defense where the evidence was
undisputed that the seatbelt was inoperable. Because the trial court ruled
that the statement regarding drug use constituted an admission by a party
opponent, it did not err in finding it admissible. As to the exclusion of the
evidence regarding the defendant, the trial court acted within its discretion
in determining that its probative value was substantially outweighed by
the danger of unfair prejudice. Finally, the court did not err in denying
the motion for directed verdict because proof of an available and
operational seatbelt is not a prerequisite to asserting, as comparative
negligence, the failure to use a seatbelt.    We therefore affirm the final
judgment.

    Candice Jones, the daughter and personal representative of the Estate
of Ryland Nye, brought a wrongful death action against Michael Alayon,
the driver of the vehicle involved in the accident which resulted in Nye’s
death. Defendant rear-ended Nye’s vehicle which caused Nye’s car to
strike a guardrail and overturn, resulting in Nye’s ejection from the vehicle.
Nye’s death resulted either when he struck the pavement or when he was
hit by other motorists thereafter. Defendant, an off-duty police officer, left
the scene and later reported to police investigators that his car had been
stolen. Subsequently, he admitted he lied, and at the time of the trial was
incarcerated on charges relating to the accident. At trial he admitted
liability for causing the accident but disputed whether his actions caused
Nye’s death, alleging that Nye’s failure to use a seatbelt constituted
comparative negligence.

   Prior to the commencement of trial, the defense moved in limine to
prevent admission of the fact that defendant was a police officer who fled
the scene, as the defendant admitted liability for causing the accident. He
claimed that its probative value was substantially outweighed by the
danger of unfair prejudice, as the jury might “punish” the defendant for
this behavior. The estate argued this evidence was relevant to damages,
because these facts increased the mental anguish of Nye’s survivors. It
proffered testimony from the decedent’s wife that she was additionally
traumatized to know that a law enforcement officer would have left her
husband without trying to help or respond. The court conducted an
analysis under section 90.403, Florida Statutes (2012), and determined
that the probative value was substantially outweighed by the danger of
unfair prejudice, because the wife’s main trauma was the occurrence and
manner of the accident itself.

    On the issue of damages to the estate and survivors, the decedent’s
family relationships were explored. The decedent had been married three
times. Jones and her sister were his children from a former marriage, and
he had an additional minor daughter from another marriage. At the time
of his death he was married to Debra Nye. The complaint sought damages
on behalf of the estate, his wife, and his children.

   At trial, Jones testified about the family relationships. During cross-
examination, defense counsel asked her whether she had ever told her
sister that her father’s present wife was spending a lot of his money on
drugs and alcohol. Jones denied ever mentioning this. The sister did not
testify at trial and resides in Tennessee. During the defense case, counsel

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read into evidence, over a hearsay objection by Jones, a portion of the
sister’s deposition in which she testified that her father had financial
issues, and that Jones told her that what the wife was spending “my dad’s
money on was probably drugs and alcohol. She did not work.” She later
reiterated that she had heard “about her [the wife’s] drug use and alcohol
use” from Jones. In opposing its admission, Jones argued that the sister’s
testimony was “hearsay on hearsay” because the sister was relaying a
statement from Jones, but Jones must have been repeating statements
made to her by her father. The defense argued that Jones’s statements
were admissions of a party opponent.

    The court overruled the objection, finding that the statement was an
admission of a party opponent, as Jones was the personal representative
of the estate. Moreover, it was relevant to the estate’s claim of lost net
accumulations.

    With respect to the affirmative defense of failure to wear a seatbelt,
Jones presented evidence that the decedent always wore a seat belt,
although he was not wearing one on the morning of the accident. His
vehicle had a seat belt, but the investigating officer testified it had coins or
an obstruction inside of it, which made it inoperable. In the wife’s
testimony, she explained that when the decedent would pay tolls on the
turnpike he would take off his seat belt to get into his pocket for change.
She thought that some of the coins had fallen into the belt mechanism in
that way. On the Saturday before the accident, she became aware of the
malfunctioning seat belt and gave the decedent some tweezers to try to get
the coins out, but he was not able to do so. She understood that he was
going to have to buy another belt to fix it, but the weekend intervened. The
following day was a Sunday, followed by Columbus Day, and the accident
occurred early in the morning on Tuesday while the decedent was on his
way to work. The defense presented expert evidence that the decedent’s
failure to wear a seatbelt caused his death.

    Plaintiff moved for a directed verdict on the seat belt defense, arguing
it was legally insufficient because there was no evidence that the seat belt
was operational at the time of the accident. The defense argued the initial
burden was on the defense to prove the car had seat belts, at which point
the burden shifted to plaintiff to demonstrate the seat belts were non-
operational. A jury question still would remain, the defense argued, as to
whether there was any negligence on the part of the decedent which
resulted in the belt’s inoperability. The court denied the motion for a
directed verdict, concluding that the issue was one for the jury. During
its closing argument, the defense argued both that the plaintiff’s theory of


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how the coins got stuck in the seat belt was not believable and that the
defendant was negligent in not getting the belt fixed.

   The jury returned a verdict assigning 30% fault to the defendant and
70% fault to the decedent. It awarded the estate $11,178 for funeral
expenses and $40,000 in lost net accumulations; $200,000 to the wife for
loss of support and services and $50,000 for pain and suffering; and
awarded the minor daughter $30,000 for loss of support and services and
$7,000 for pain and suffering. It awarded Jones nothing for her claim of
loss of services. Jones moved for a new trial based upon the same three
arguments she now makes in this appeal. The trial court denied the
motion, prompting this appeal.

   The first two issues involve the trial court’s rulings on evidence. “A trial
court’s decision on the admissibility of evidence is reviewed for abuse of
discretion, as limited by the rules of evidence.” Herring v. State, 132 So.
3d 342, 345 (Fla. 4th DCA 2014).

                      Admissions of a Party Opponent

   Jones claims that the trial court erred in admitting her sister’s
testimony as to Jones’s statement that the decedent’s wife was using the
decedent’s money to buy drugs and alcohol. She claims that this was
hearsay within hearsay, because Jones’s statement was relaying
information given to her, but the source of that information is unknown,
thus amounting to hearsay. We disagree, as the statement qualifies as an
admission by a party opponent.

   Section 90.803(18), Florida Statutes (2012), provides an exception to
the inadmissibility of hearsay for admissions by a party:

         (18) Admissions.--A statement that is offered against a
      party and is:
         (a) The party’s own statement in either an individual or a
      representative capacity;
         (b) A statement of which the party has manifested an
      adoption or belief in its truth . . . .

Admissions need not be based on firsthand knowledge by the party, the
rationale being “that a witness will not make a statement against his
interest unless he or she has made an adequate investigation.” Charles
W. Ehrhardt, Florida Evidence, § 803.18 (2014 ed.).



                                      4
     Although there is some contrary authority, the established rule
     in Florida, and the clear majority rule throughout the country, is
     that an admission by a party opponent or his agent need not be
     based on the personal knowledge of a party or his agent. This is
     so because when a person or his agent speaks against his own
     interest, as here, or otherwise makes relevant admissions of
     substantial importance to himself, it may be assumed that he or
     his agent has made an adequate investigation so that such
     statements possess, even if not based on firsthand observation,
     a substantial indicia of reliability.

Metro. Dade Cnty. v. Yearby, 580 So. 2d 186, 189 (Fla. 3d DCA 1991)
(footnotes omitted). Accord, Benjamin v. Tandem Healthcare, Inc., 93 So.
3d 1076, 1086 (Fla. 4th DCA 2012).

   Applying the statute, Jones, as personal representative of the estate,
was a party and made the statement to her sister. Thus, the statement is
treated as an admission under section 90.803(18)(a), Florida Statutes
(2012). That it is based upon what someone else may have told Jones is
unimportant, in that she would not make the statement without some
investigation or indicia of reliability. See Yearby, 580 So. 2d at 189.

   Moreover, at trial Jones suggested that the decedent himself may have
been the authority for the information, thus also qualifying as an
admission by the deceased with whom the estate stands in privity. See
Charles W. Ehrhardt, Florida Evidence, § 803.18(g) (2014 ed.) (“The
admissibility of the decedent’s statements is founded on a theory that
privity of estate exists between the declarant and the party against whom
the statements are sought to be used.”); Ritter v. Brengle, 185 So. 2d 7, 9-
10 (Fla. 2d DCA 1966) (finding statements were admissible under
admission exception to hearsay rule, “even though [the declarant] is
deceased and the [declarant’s estate] has been substituted in his place”).
Therefore, the statement falls within the exception to the inadmissibility of
hearsay, and the trial court did not abuse its discretion in allowing its
admission.

          Prohibition of Post-Accident Conduct as Evidence

    The trial court also prohibited Jones from disclosing to the jury that
the defendant was a police officer who fled from the scene. She claimed
that because this information increased the wife’s pain and suffering
resulting from the accident, it should have been admitted. The court
listened to the proffer of the wife’s testimony on this issue and made a
probative versus prejudicial analysis under section 90.403, Florida

                                     5
Statutes (2012). “Where a trial court has weighed probative value against
prejudicial impact before reaching its decision to admit or exclude
evidence, an appellate court will not overturn that decision absent a clear
abuse of discretion.” Johnson v. State, 40 So. 3d 883, 886 (Fla. 4th DCA
2010) (quoting Trees v. K-Mart Corp., 467 So. 2d 401, 403 (Fla. 4th DCA
1985)).

   Section 90.403, Florida Statutes (2012), provides: “Relevant evidence is
inadmissible if its probative value is substantially outweighed by the
danger of unfair prejudice . . . .”

         In weighing the probative value against the unfair
      prejudice, it is proper for the court to consider the need for
      the evidence; the tendency of the evidence to suggest an
      improper basis to the jury for resolving the matter, e.g., an
      emotional basis; the chain of inference necessary to establish
      the material fact; and the effectiveness of a limiting
      instruction.

Johnson, 40 So. 3d at 886 (emphasis omitted) (quoting Taylor v. State, 855
So. 2d 1, 22 (Fla. 2003)).

    According to the trial court, the wife’s proffered testimony indicated
that she continued to have nightmares about the manner in which the
accident occurred, not the fact that the defendant was a police officer who
left the scene, although the latter circumstances made her unable to
forgive the defendant. The trial court weighed this against the potential
prejudicial effect of this evidence where the defendant had already
admitted negligence. Such evidence of the defendant’s post-accident bad
acts could have inflamed the jury and caused them to award plaintiff
damages in a desire to punish the defendant, even though no punitive
damages were sought. See generally Wright v. State, 19 So. 3d 277, 296
(Fla. 2009) (“Unfair prejudice has been described as an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily,
an emotional one. . . . This rule of exclusion is directed at evidence which
inflames the jury or appeals improperly to the jury’s emotions.”) (citations
and internal quotation marks omitted). Cf. Hendrix v. Burns, 43 A.3d 415,
436-37 (Md. 2012) (in auto accident case where defendant admitted
negligence, fact that plaintiff subsequently learned that defendant was
drunk and attempted to flee was inadmissible). In an analogous situation,
evidence regarding the defendant’s sobriety at the time of the accident has
been held inadmissible where negligence is admitted. See Swanson v.
Robles, 128 So. 3d 915, 917-18 (Fla. 2d DCA 2013); Neering v. Johnson,
390 So. 2d 742, 744 (Fla. 4th DCA 1980).

                                     6
    The trial court carefully weighed the probative value of such testimony
on the issues remaining in the case and determined that its prejudicial
effect outweighed the probative value. No clear abuse of discretion has
been shown.

         Comparative Negligence of Failure to Use a Seatbelt

    Jones claims that the court should have directed a verdict because the
undisputed evidence showed that the seat belt was inoperable at the time
of the accident. Therefore, the defendant could not show that the decedent
failed to use an available and operational seatbelt, which is required for
the seatbelt affirmative defense. We disagree, as both statutory law and
case law permit a jury to consider more factors than simply the availability
and operability of a seatbelt.

   In Insurance Co. of North America v. Pasakarnis, 451 So. 2d 447 (Fla.
1984), abrogated in part by Ridley v. Safety Kleen Corp., 693 So. 2d 934
(Fla. 1996), the Florida Supreme Court established a common law seat belt
comparative negligence defense, holding:

      [E]vidence of failure to wear an available and fully operational
      seat belt may be considered by the jury in assessing a
      plaintiff’s damages where the “seat belt defense” is pled and it
      is shown by competent evidence that failure to use the seat
      belt produced or contributed substantially to producing at
      least a portion of the damages.

Id. at 449. Because, at that time, Florida did “not by statute require the
use of available seat belts,” the court did not adopt a negligence per se
standard for the defense. Id. at 453. It held:

      Nonuse of the seat belt may or may not amount to a failure to
      use reasonable care on the part of the plaintiff. Whether it
      does depends on the particular circumstances of the case.
      Defendant has the burden of pleading and proving that the
      plaintiff did not use an available and operational seat belt,
      that the plaintiff’s failure to use the seat belt was
      unreasonable under the circumstances, and that there was a
      causal relationship between the injuries sustained by the
      plaintiff and plaintiff’s failure to buckle up. If there is
      competent evidence to prove that the failure to use an
      available and operational seat belt produced or contributed
      substantially to producing at least a portion of plaintiff’s

                                     7
      damages, then the jury should be permitted to consider this
      factor, along with all other facts in evidence, in deciding
      whether the damages for which defendant may otherwise be
      liable should be reduced.

Id. at 454.

    In 1986 the Florida Legislature enacted the Florida Safety Belt Law,
which established that it is unlawful “[t]o operate a motor vehicle in this
state unless the person is restrained by a safety belt.” § 316.614(4)(b), Fla.
Stat. (1986). The statute provides that a violation “shall not constitute
negligence per se, nor shall such violation be used as prima facie evidence
of negligence or be considered in mitigation of damages, but such violation
may be considered as evidence of comparative negligence, in any civil
action.” § 316.614(10), Fla. Stat. (2006).

   The supreme court addressed the effect of this statute on the common
law seat belt defense in Ridley v. Safety Kleen Corp., 693 So. 2d 934 (Fla.
1996). The court noted that the statute “makes no exception to its strict
terms as to whether the vehicle is equipped with an available and fully
operational seat belt.” Id. at 943. But the court found that, because

      the legislature did not make the failure to wear a seat belt
      negligence per se or prima facie evidence of negligence[,] . . . .
      we conclude a jury may still consider the availability or
      operability of a seat belt in its broader negligence analysis
      since it is part of the circumstances upon which the jury may
      decide whether the plaintiff’s omission was reasonable.

Id. at 943 n.14 (emphasis added).

    We understand Ridley to hold that the seatbelt statute does not require
the defendant to show that the plaintiff had an available and fully
operational seatbelt as a prerequisite to asserting a comparative negligence
defense. Instead, the failure to wear a seatbelt is an element of
comparative negligence, and the jury can consider all of the surrounding
circumstances, including the inoperability of the belt and the reason why
it is inoperable, to determine whether the plaintiff was comparatively
negligent. Cf. DiMauro v. Metro. Suburban Bus Auth., 105 A.D.2d 236, 244-
45 (N.Y. App. Div. 1984) (plaintiff’s voluntary decision to sit in a seat that
plaintiff knew had inoperable seat belt, where other seats with working
seat belts were available, could be considered in mitigation of damages).



                                      8
    Ridley directed courts to cease using Florida Standard Jury Instruction
(Civil) 6.14 which was drafted to implement the holding of Pasakarnis.
That instruction had required the jury to determine “whether the greater
weight of the evidence shows [that the automobile occupied by (claimant)
was equipped with an available and fully operational seat belt,] [and] that
(claimant) did not use the seat belt[.]” Ridley, 693 So. 2d at 937 n.3.
Instead, the present Model Instruction No. 2 of the Florida Standard Jury
Instructions (Civil), written for an auto accident case involving the
plaintiff’s comparative negligence including failure to wear a seat belt,
directs the jury to determine “whether Jane Doe was herself negligent in
the operation of her vehicle and/or in failing to wear her seat belt, if so,
whether that negligence was a contributing legal cause of injury or damage
to Jane Doe.” In re Standard Jury Instructions in Civil Cases—Report No.
12-01, 130 So. 3d 596, 636 (Fla. 2013) (Model Instr. No. 2).1

    Thus, proof that a seatbelt was available and fully operational is not a
prerequisite to establishing the comparative negligence of the plaintiff. A
jury must still consider all of the circumstances to determine whether the
plaintiff was comparatively negligent in causing his or her injuries through
the failure to wear a seatbelt. That the available seatbelt may be
inoperable is certainly a factor for the jury to consider along with evidence
of the plaintiff’s negligence, or lack thereof, in driving the vehicle with an
inoperable seat belt, which is a violation of the statute, unless one of the
statutory exceptions applies. The trial court correctly denied the motion
for directed verdict and left to the jury the resolution of the issue of
comparative negligence of the decedent for failure to wear a seatbelt.

    For the foregoing reasons, we affirm the final judgment.

MAY and GERBER, JJ., concur.

                             *         *         *

    Not final until disposition of timely filed motion for rehearing.




1 The Florida Supreme Court provides the Model Jury Instructions to illustrate
the use of the Florida Standard Jury Instructions in different hypothetical
scenarios. These model instructions are available on the Florida Supreme Court’s
website at:
http://www.floridasupremecourt.org/civ_jury_instructions/instructions.shtml#
model.


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