Florida has a statue that protects any person involved in a motor vehicle collision from having their words used against them in a civil trial or criminal trial. It is called the accident report privilege and it is F.S. 316.066 (4). The relevant language states as follows:

(4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 are not confidential and are admissible into evidence in accordance with the provisions of s. 316.1934(2).

This “accident privilege” does not apply to other persons who may come to the scene such as family members, friends, para-medics and EMS technicians. Why is that of concern or of importance?

Well, a recent case, the court overturned a jury verdict finding that the exclusion of what a party said to the EMS technician should have been known to the jury. The statement may have changed jurors’ minds on who was really to blame for the collision.

The case involved a motor vehicle collision which arose on the afternoon of December 8, 2012. While in the course and scope of his employment with Ring Power, Mr. Quandt was driving a large service truck owned by Diesel Construction northbound on I-75 in Pasco County. Mr. Quandt’s truck collided with a Ford Expedition driven by Mr. Condado and occupied by Ms. Rodriguez, which was also travelling northbound on I-75. Mr. Quandt’s truck then collided with a third vehicle.

It was undisputed that there was a mattress in the northbound lanes of the interstate, causing cars to stop or swerve unexpectedly. Further, the parties agreed that there were two northbound lanes of I-75, a median between the north and southbound lanes, and a narrow shoulder adjacent to that median. The agreed-upon facts end there; the parties gave opposing versions of what occurred.

Mr. Condado alleged that he did nothing to contribute to the accident. He claimed that for two or more miles prior to the accident he had been travelling in the left lane. He stated that he saw traffic slowing ahead of him due to someone pulling a mattress out of the roadway and claimed he did not suddenly swerve from the right lane into the left lane in front of Mr. Quandt’s vehicle. Mr. Condado testified that he saw Mr. Quandt’s vehicle directly behind him; he alleged that Mr. Quandt was driving too fast and following too closely. When it appeared that Mr. Quandt’s vehicle was going to rear-end Mr. Condado’s, Mr. Condado steered his vehicle left, into the narrow shoulder. He testified that because of the narrowness of the shoulder, he was unable to completely exit the left lane of the interstate. He further testified that upon steering his vehicle into the left shoulder, the rear of his vehicle was forcefully struck by Mr. Quandt’s large service truck, causing Mr. Condado’s vehicle to roll over. As a result of the roll over, Mr. Condado and Ms. Rodriguez suffered significant injuries.

Mr. Quandt claimed that the accident was caused entirely by Mr. Condado suddenly and unexpectedly swerving from the right lane into the left lane and then into the left shoulder, directly into Mr. Quandt’s path of travel. Mr. Quandt testified that the mattress was less than 100 yards away when the traffic in front of him reacted by slowing and stopping. He testified that he was able to reduce his speed significantly and that he attempted to avoid the collision with Mr. Condado’s vehicle by moving left into the shoulder and median. But because Mr. Condado swerved further into the median in front of him, the accident was unavoidable.

Ring Power’s lawyer sought to have published to the jury a statement Mr. Condado made to an EMS technician, Mr. Paton, at the time he was being treated and prepared for transport. Mr. Conaldo stated to Mr. Paton “Husband states he swerved to avoid a mattress in the road and lost control of the car and went off the road” (Mr. Condado’s statement). Mr. Paton prepared the EMS Report on the day of the accident.

The Court said this was hearsay and kept the statement from being heard by the jury. The verdict was for Mr. Condado which was reversed by the Appellate Court.

An admission is “[a] statement that is offered against a party and is . . . [t]he party’s own statement in either an individual or a representative capacity.” § 90.803(18)(a). That is, the statement need only be (1) a party’s and (2) offered against that party to qualify as an admission. Of course, the admission must also be relevant — “tending to prove or disprove a material fact.” § 90.401. Statements of a party offered by an opponent regarding causation in negligence actions are generally considered admissions. See McKay v. Perry, 286 So. 2d 262, 263 (Fla. 2d DCA 1973) (stating that party’s statement to neighbor regarding ownership of a dog in a dog-bite case would be admissible as an admission); Otis Elevator Co. v. Youngerman, 636 So. 2d 166, 167 n.1 (Fla. 4th DCA 1994) (noting that plaintiff’s statement to nurse regarding fall was an admission); Wilkinson v. Grover, 181 So. 2d 591, 593-94 (Fla. 3d DCA 1965) (concluding that plaintiff’s statements to physician as to how fast plaintiff was driving at time of accident were admissions). However, the statements of a party need not speak directly to liability to be admissions. See, e.g., Jones v. Alayon, 162 So. 3d 360, 365 (Fla. 4th DCA 2015) (concluding that statement by party regarding how money was spent was an admission). “It is well settled that an admission against interest may be introduced into evidence as substantive evidence of the truth of the matter stated.” Seaboard Coast Line R.R. Co. v. Nieuwendaal, 253 So. 2d 451, 452 (Fla. 2d DCA 1971); accord McKay, 286 So. 2d at 263. “This is so even though the person making the admission against interest subsequently denies making such admission.” Seaboard Coast Line, 253 So. 2d at 452; see also Charles W. Ehrhardt, Florida Evidence § 803.18 (2014 ed.) (“If a statement is offered as substantive evidence under [section 90.803(18)] it is not necessary to lay a foundation by asking the individual who made the statement whether he or she did so.”).

Here, Ring Power sought to introduce Mr. Condado’s statement — attributed to Mr. Condado and included in a properly admitted business medical record — as evidence against Mr. Condado. It clearly meets the statutory requirements of an admission.

Mr. Condado maintains that because he challenged the trustworthiness of the EMS Report and his statement within it, his statement was properly excluded. Provided that medical records, including EMS records, otherwise meet the requirements of a business record under section 90.803(6)(a), their trustworthiness is presumed. Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840, 842-43 (Fla. 1st DCA 2000) (citing Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994)). However, the party opposing the introduction of the medical records may rebut that presumption. Love, 634 So. 2d at 160 (“[T]he burdens is on the party opposing the introduction to prove the untrustworthiness of the records.”).

In this case, a very favorable verdict for the injured party was reversed the and the case sent back to the trial court for a new trial. Certainly, we can all can understand the pressure and stress of being injured and saying things that come out differently than what you were thinking. On the other hand, if the statement in this case was was the truth then and conflicted with the trial testimony, a new trial was needed. In any event, conversations with the EMS technicians are generally only about what hurts and what your injuries are. The EMS technician is not generally concerned with fault but in your injuries.