Sottilaro v. Figueroa, 37 Fla. L. Weekly D330 (Fla. 2nd DCA 2012) was an automobile pedestrian wrongful death action in which the 14 year old plaintiff’s decedent crossed a U.S. 27 major four lane highway with several of his friends. After reaching the median and attempting to cross the southbound lane, he was struck and killed by the defendant who, from the only available evidence, was traveling within the speed limit. At the scene of the accident a Deputy Sheriff took statements from the teenage friends of plaintiff’s decedent as part of his traffic fatality investigation report. The witnesses all told him that the decedent was looking down at his phone and texting while crossing the highway and was not paying attention to oncoming traffic.
During depositions and eventually at trial, the witnesses denied knowing whether plaintiff’s decedent was texting or not and the defendant sought to impeach these witnesses with the statements given to the police officer. The trial court, relying upon Williams v. Scott, 153 So. 2d 18 (Fla. 2d DCA 1963) declined to allow defense counsel to utilize the statements citing Fla. Stat. 316.066(5), the accident report privilege statute. That statute states the following:
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. No such report or statement shall 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.
In Williams, supra, the issue concerned a statement given by a pedestrian who was struck by the defendant. The police officer testified that he had the impression that the pedestrian did not know what the color of the light was. The Second District, based upon the above-quoted statute, concluded that the statements of the pedestrian/plaintiff were privileged and, therefore, inadmissible. At 19-20, the Court held:
. . . we think his statements come within the protective cloak of § 317.17 F.S.A. The latter section, as previously noted, provides that ‘[a]ll accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting. . . .’ (emphasis added)[.] This language does
not restrict immunity to those who are required to report, and we are unable to read such restriction into the section by reference to other sections. (Emphasis added by the Court.)
Clearly the Second District in Williams recognized that the pedestrian had no responsibility under the statute to give a statement to the police officer but nevertheless held that that statement, once given, became privileged.
In Sottilaro, supra, the distinguishing feature was that the persons making the statement were not directly involved in the accident but rather eye witnesses to the accident. This distinction caused the Second District to make a 180o turn and conclude that the statements of the witnesses were not covered by the statute and were thus not privileged nor inadmissible.
The opinion in Sottilaro, supra, relies heavily on the fact that the witnesses were not required to give a statement to the police officer and that since the purpose of the statute is to preclude the invasion of the constitutionally protected right against self-incrimination, only those persons actually involved in the accident enjoy the privilege.
The Second District relies on McTevia v. Schrag, 446 So. 2d 1183 (Fla. 4th DCA 1984). In that case a witness who was a friend of the plaintiffs was following the plaintiffs in his car. At the time of the accident, the witness told the investigating officer that he did not witness the accident but two weeks later reversed his statement and claimed to be a witness to the accident. The Fourth District affirmed the trial court allowing the prior statement of the witness to be used as impeachment, stating that the accident report privilege only applied to those required to make a report and not to witnesses who volunteer information. The Fourth District gave as it’s reasoning that only persons who were required to make a report under the statute enjoyed a constitutional privilege against self- incrimination.
The McTevia case seems to fly in the face of the decision of the Second District in Williams but the Second District somewhat muddied the waters by not withdrawing the Williams opinion and instead concluding that because a pedestrian and a motorist involved in an accident both have the same standard of reasonable care, they are presumptively entitled to the same reciprocal rights and immunities when they become litigants so that allowing the pedestrian’s statement to an officer into evidence while excluding the driver’s statement would be unreasonable.
In Sottilaro, the Second District relies upon Brackin v Boles, 452 So. 2d 540, 544 (Fla. 1984) in which the Supreme Court at 544 states:
We clearly and emphatically hold that the purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2).
The Second District’s conclusion that the plaintiff’s decedent’s friends who were witnesses and, therefore, not drivers, owners or occupants of the vehicle and thus not entitled to statutory immunity is supported by the Supreme Court opinion in Brackin, supra. While Williams, supra, would amend the Supreme Court’s Brackin opinion by adding the word “pedestrian” to driver, owner or occupant, it is nevertheless clear that the compelling weight of authority supports the Second District’s opinion in Sottilaro that witnesses who are not required to make statements utilized in an accident report are also not entitled to statutory immunity. There is no Fifth Amendment right against self-incrimination that is violated by such a holding and thus the very purpose of the statute supports that decision.
Originally published July/August 2012