Police are usually called to the scene following a Florida car accident. They are required, in most cases, to write an accident report. Pursuant to Florida Statute Section 316.066 (5), however, the accident report is inadmissible evidence to the jury when the case goes to civil trial for damages.

This statute was recently challenged in a motor vehicle accident case that resulted in the death of a pedestrian, Christopher Cepeda was only fourteen years old when he and four of his friends were walking home after playing basketball. He was killed while crossing U.S. 27, a major four-lane highway with a wide grassy median and a posted speed limit of 65 miles per hour. As Mr. Cepeda and his friends waited in the median to cross the road, Denise Sottilaro suddenly changed lanes and, although she claimed to have hit her brakes, slammed into the boy. He later died from the injuries.

About an hour after the accident several of Mr. Cepeda’s friends, who witnessed the accident, gave sworn statements to the Deputy Sheriff who was investigating the crash. They apparently stated that Mr. Cepeda was busy looking at his phone and texting when he was hit and killed by the Defendant’s car. The Deputy included the sworn statements in his traffic fatality investigation report.

During the trial one of the witnesses testified live. The defense lawyers wanted to use the sworn statements to impeach the witness’s testimony after he testified at trial that he did not know if Mr. Cepeda was texting or not at the time of the impact. The Trial Court would not allow the witness to be impeached with the sworn statements made to the Deputy.

A verdict was rendered in favor of the boy’s Estate and the Defendant appealed to Florida’s Second District Court of Appeal in the case of Sottilaro v. Figueroa. The Appellate Court reversed the Trial Court and held that the accident report privilege only applies to the driver, owner, or occupant of a vehicle because they are the only persons legally compelled to make an accident report. Witnesses of an accident are not protected by the privilege because they are not involved in the accident and do not have any rights or responsibilities regarding the accident.

The immediate effect of this opinion takes away a substantial verdict given to the family of a boy killed by a car while crossing a Florida road. As a Palm Beach hit and run accident attorney, I am disappointed with the Court’s interpretation of the statute, as I believe it will discourage witnesses from wanting to be involved in accident investigations and jury trials for fear they will be subjected to cross examination or impeachment for the information they provide to law enforcement. I am saddened that this family, who lost a child, will have to sit through an entirely new jury trial after their substantial verdict was taken away.

The benefit of this statute, however, is that anyone involved in a motor vehicle accident in Florida as a driver, passenger, or owner of a car, or a pedestrian when injured by a vehicle, can feel confident that their statements made to law enforcement can be truthful and not be used against them in violation of their Fifth Amendment privilege against self-incrimination.

Lastly, this case wrongful death case, again, also highlights the dangers of texting while driving or crossing the road, and we urge everyone to simply put their smart phones away until they are safely able to focus on what they are doing.