FLORAYME GARCIA, ETC., APPELLANT,
v.
HENRI KONCKIER, ETC., ET AL., APPELLEES
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The personal representative of a decedent killed in a bar parking lot shooting appeals a negligent security judgment against the bar and property owner. The appellate court reverses and remands for a new trial, finding that the trial court committed reversible error by allowing extensive character attacks on the victim that violated Florida evidence rules.
The trial court committed reversible error by allowing character evidence and hearsay testimony about the decedent's alleged bad character and prior conduct, which violates Florida Evidence Code § 90.404 and Florida case law. The foreseeability issue was a disputed question of fact for the jury, and the cross-appeal is affirmed. The case is reversed and remanded for a new trial on both liability and damages.
[1] Evidence of a decedent's character is inadmissible in a civil action to prove that the decedent acted in conformity with that character during the incident.
[2] Testimony regarding a witness's hearsay statements about a decedent's past behavior in bars is inadmissible and prejudicial.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In civil actions, character evidence is inadmissible to prove that a person acted in conformity with his or her character, i.e., to prove a person's conduct.”
Establishes the fundamental evidentiary principle that character evidence cannot be used in civil cases to show the victim acted according to their character.
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Join FLexlaw to unlock all legal intelligenceDanilo Jesus Bobillo was shot to death in the parking lot of the Apache Bar and Grill during an altercation between Bobillo and his friends and a driv…
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PER CURIAM.
The personal representative of the Estate of Danilo Jesus Bobillo appeals from a final judgment awarding damages in an action for negligent security. For the following reasons, we reverse and remand for a new trial on both liability and damages.
The decedent was shot to death in the parking lot of the Apache Bar and Grill, which is located in the Concord Shopping Plaza. The shooting happened during an altercation between the decedent and his friends, all of whom were patrons of the bar, and a driver whose Camaro was apparently blocked by another car in the parking lot. There was conflicting evidence as to whether decedent and his friend, both large men, attempted to prevent the Camaro from leaving the parking lot. When decedent’s friend displayed a gun he had concealed in his waistband, the driver of the blocked Camaro shot and killed the decedent and wounded the decedent’s friend. The decedent’s personal representative sued the bar and the property owner based on a claim that those allegedly responsible for maintaining security knew that the Apache Bar patrons regularly and drunkenly spilled out of the confines of the bar into the parking lot, yet neither the bar nor the property owner provided any security.
During trial, over plaintiffs multiple objections, the trial court repeatedly allowed the defendants to smear the character of the decedent. At the outset, the court denied plaintiffs motion in limine to prevent the defense from suggesting to the jury that decedent was a member of a gang. Because of that ruling, the term “gang” or “gang member” was used throughout the trial and during defendants’ opening and closing arguments to refer to the decedent and the friends he was with the night he was shot and killed.1 Much of the testimony focused on suggested prior criminal behavior of the decedent and his companions, which was irrelevant to this case. The focus on the victim’s character constitutes reversible error. See Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So. 2d 596 (Fla. 3d DCA 2000).
In Smith, a case also premised on negligent failure to provide adequate security at a bar and restaurant, this court held that evidence of a bar patron’s purported bad character was inadmissible to prove that the decedent had acted in conformity with that bad character at the time of the incident. Id. at 599.
See also §§ 90.404(1) — (2), Fla. Stat. (1996); Charles W. Ehrhardt, Florida Evidence, § 404.3 (2000 Edition) (“In civil actions, character evidence is inadmissible to prove that a person acted in conformity with his or her character, i.e., to prove a person’s conduct.”)
Moreover, over plaintiffs objection, the trial court allowed one witness, a police officer, to testify that he had been told that the decedent often got into verbal altercations and fights in bars. This testimony was clearly inadmissible and highly prejudicial. See Stripling v. State, 349 So. 2d 187, 192 (Fla. 3d DCA 1977) (“It is inappropriate for one who is a detective or stranger sent out to learn the character of a witness to be permitted to testify as to the result of his or her inquiries.”).
Although we reverse on the main appeal for a new trial on liability and damages, we affirm on the cross-appeal, as the issue of foreseeability in this case was a disputed question of fact to be decided by the jury. The remaining points on appeal are either without merit, or need not be addressed in light of this opinion.2
Reversed and remanded for a new trial.
. Even in oral argument, appellate counsel for the defendants repeatedly used the terms "gang” and "gang member.”
. We are confident that a thorough and appropriate interrogatory verdict form will be provided when this matter is retried.
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Thigpen v. United Parcel Servs., Inc., 990 So. 2d 639 (Fla. 4th DCA 2008)…evant to show bad character or propensity); Long Term Care Found., Inc. v. Martin, 778 So. 2d 1100, 1102-03 (Fla. 5th DCA 2001) (allegations in a different lawsuit against defendant were not relevant and were highly prejudicial); Garcia v. Konckier, 771 So. 2d 550 (Fla. 3d DCA 2000) (ordering a new trial in an action against a bar for negligent security where the trial court allowed testimony suggesting prior criminal behavior of deceased bar patron and his companions and repeated references to patron’s gang…
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Reyes v. State, 783 So. 2d 1129 (Fla. 3d DCA 2001)…irls. He also defined the phrase, ‘almighty don’t love nobody,’ as a challenge meaning that the Latin Kings was a nation unto itself that would take anyone on. We are compelled to hold that this evidence requires reversal. E.g., Garcia v. Konckier, 771 So. 2d 550 (Fla. 3d DCA 2000); Doherty v. State, 726 So. 2d 837 (Fla. 4th DCA 1999). It is true, as the state argues, that in some contexts, evidence of gang membership may be admissible to explain such disputed or unclear issues in the case as premeditation,…
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Dean v. State, 843 So. 2d 926 (Fla. 5th DCA 2003)…e of a person’s reputation solely through his official position to be allowed to testify in this respect. See Parker v. State, 458 So. 2d 750, 753-54 (Fla.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985); Garcia v. Konckier, 771 So. 2d 550 (Fla. 3d DCA 2000); Young v. State, 598 So. 2d 163 (Fla. 3d DCA 1992); Wolack v. State, 464 So. 2d 587 (Fla. 4th DCA 1985), pet. for rev. denied, 476 So. 2d 676 (Fla.1985); Stripling; see also State v. Johnson, 540 So. 2d 842 (Fla. 4th DCA 1988). A…
Authorities Cited
- Stripling v. State, 349 So. 2d 187 (Fla. 3d DCA 1977)
- Smith v. Hooligan's PUB & Oyster BAR, Ltd., 753 So. 2d 596 (Fla. 3d DCA 2000)