DOROTHY WYNNE, APPELLANT,
v.
EXERCISE CENTERS OF SOUTHEAST FLORIDA, INC., D/B/A RICHARD SIMMONS ANATOMY ASYLUMS AND HEALTH & TENNIS CORPORATION OF AMERICA, INC., APPELLEES
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Dorothy Wynne appealed a negligence judgment after her purse and jewelry were stolen while she was a customer at an exercise facility. The appellate court reversed and remanded for a new trial, finding that the trial court erroneously excluded highly prejudicial evidence of a prior theft incident at the same facility.
The employee's statement was admissible as an admission against interest made by an agent of the defendant and its exclusion constituted reversible error because the evidence was extremely prejudicial to the defendant and not harmless. The statement was crucial to establishing that the defendant had actual knowledge of a similar recent theft, making the subsequent theft reasonably foreseeable and the defendant negligent for failing to provide lockers or safes.
[1] A statement made by an employee of a business immediately after a customer reports a theft, indicating that a similar incident occurred previously, is admissible as an ad…
[2] The exclusion of an employee's statement admitting prior knowledge of a similar theft is not harmless error when that statement tends to establish the foreseeability of t…
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Join FLexlaw to unlock all legal intelligence“this statement was admissible as an admission against interest made by an agent of the defendant”
Establishes the legal admissibility standard for the excluded employee statement
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Join FLexlaw to unlock all legal intelligenceDorothy Wynne was a business invitee at Exercise Centers of Southeast Florida, Inc. (operating as Richard Simmons Anatomy Asylums) when her purse and …
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PER CURIAM.
This is an appeal by the plaintiff Dorothy Wynne from a final judgment entered after a non-jury trial in a negligence action arising out of the theft of the plaintiff’s purse and jewelry while the plaintiff was a business invitee of the defendant Exercise Centers of Southeast Florida, Inc. The plaintiff raises two points on appeal, one of which presents reversible error. The plaintiff contends, and the defendant concedes, that the trial court erred in excluding from evidence a statement made by an employee of the defendant immediately after the plaintiff reported to the employee that the subject purse and jewelry had been stolen, to wit: “Not again[;] [t]he same thing happened last week.” Plainly, this statement was admissible as an admission against interest made by an agent of the defendant. Botte v. Pomeroy, 497 So. 2d 1275, 1277 (Fla. 4th DCA 1986), rev. denied, 508 So. 2d 15 (Fla.1987); § 90.803(18)(d), Fla.Stat. (1987). We further conclude that this error was extremely prejudicial to the defendant and was not, as the defendant urges, a harmless error. This is so because the statement clearly establishes that the defendant had actual knowledge of a similar and very recent prior theft against one of its business invitees — which, in turn, tended to establish that the theft in the instant case was reasonably foreseeable and that the defendant was therefore negligent in failing to provide any lockers or safes for its customers to store their valuables while making use of the defendant’s exercise facilities. Stated differently, this was a damning piece of evidence against the defendant in this negligence action, and its exclusion therefore constitutes a reversible error. See Nance v. Winn Dixie Stores, Inc., 436 So. 2d 1075, 1077 (Fla. 3d DCA 1983), rev. denied, 447 So. 2d 889 (Fla.1984); Firth v. Marhoefer, 406 So. 2d 521, 523 (Fla. 4th DCA 1981); cf. Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442, 446-49 (Fla. 5th DCA), rev. denied, 411 So. 2d 384 (Fla.1981); Highlands Ins. Co. v. Gilday, 398 So. 2d 834, 836 (Fla. 4th DCA), rev. denied, 411 So. 2d 382 (Fla.1981).
We find no merit, however, in the plaintiffs second point on appeal. The final judgment under review is therefore reversed and the cause is remanded to the trial court for a new trial.
Reversed and remanded.
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Citator
Cited By
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Andreu v. Citicorp Savings OF Florida, 585 So. 2d 1081 (Fla. 3d DCA 1991)…e might have strengthened the jury’s perception of the Andreus’ credibility sufficiently to change the verdict. The exclusion of such a “damning piece of evidence” constitutes a reversible error. Wynne v. Exercise Centers of Southeast Florida, Inc., 548 So. 2d 704, 705 (Fla. 3d DCA 1989). For the foregoing reasons, we find that the trial court erred in excluding the proffered evidence of Mr. Flatow’s allegations, and we hereby reverse and remand this cause for a new trial. Finding our decision on this issue…
Authorities Cited
- Anne E. Nance v. Winn Dixie Stores, Inc., 436 So. 2d 1075 (Fla. 3d DCA 1983)
- Highlands Ins. Co. v. Gilday, 398 So. 2d 834 (Fla. 4th DCA 1981)
- Bell v. State, 402 So. 2d 442 (Fla. 3d DCA 1981)
- Orlando Executive Park, Inc. v. P. D. R., 402 So. 2d 442 (Fla. 5th DCA 1981)
- Botte v. Pomeroy, 497 So. 2d 1275 (Fla. 4th DCA 1986)
- Hetty S. Firth v. Marhoefer, 406 So. 2d 521 (Fla. 4th DCA 1981)