SCHWARTZ, Senior Judge.
Rosalia Gonzalez sued Mount Sinai hospital for the wrongful death of her husband, Antonio Gonzalez. She claimed that, as she and her husband descended steps at Mount Sinai's main bus stop, he fell and broke his hip, as a result of which he passed away a few weeks later. The jury returned a large verdict for the plaintiff, upon which judgment was entered after it was reduced by an uncontested remittitur. Because the plaintiff did not present competent evidence that her husband even fell on or down the steps — let alone that he did so because of their defective condition — rather than on the sidewalk adjacent to the bus stop, and thus failed to show that Mount Sinai's alleged negligence was a legal cause of the accident, we reverse.
The sum total of Mrs. Gonzalez's claim was that her husband was injured as a result of the hazardous condition of the hospital steps.
The only probative, direct testimony on the issue was that of driver Fausto Manzo, who was sitting in his bus, awaiting passengers. He testified that he saw the fall itself and that the Gonzalezes had already reached the sidewalk when it occurred. He stated:
He confirmed this account in a call to his dispatcher immediately after the accident had occurred.
On the "other side" of the issue, we find is only empty evidentiary space.
1. Her primary reliance is on her own testimony, which although it contains statements that support her claim, was on analysis, no more than speculative and conclusory and thus valueless. On direct examination, Mrs. Gonzalez admitted that she did not see her husband fall, but rather, after the fact, deduced what had occurred:
On cross examination, Mrs. Gonzalez stated that she was only speculating as to what had occurred:
This testimony falls directly under the holding in Gooding v. University Hospital Building, Inc., 445 So.2d 1015, 1018 (Fla.1984) (quoting Prosser, Law of Torts § 41) (footnotes omitted), that "[a] mere possibility of ... causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." See Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., 881 So.2d 565, 569 (Fla. 3d DCA 2004) (affirming directed verdict in part "because the nurseries failed to establish causation").
2. The plaintiff's reliance on her engineering expert is likewise misplaced. His testimony was arguably sufficient as to whether the steps were properly constructed, see, e.g., Millar v. Tropical Gables Corp., 99 So.2d 589, 590 (Fla. 3d DCA 1958) (concluding expert's "testimony would be helpful in order to determine whether the premises were constructed and maintained in accordance with reasonably safe construction and engineering standards"), and, although with less certainty, whether those defects could be deemed the legal cause of Mr. Gonzalez's otherwise unexplained falling upon and down the steps. See Wong v. Crown Equip. Corp., 676 So.2d 981, 983 (Fla. 3d DCA 1996) (Schwartz, J. dissenting) ("In my opinion, it is clear that these undisputed facts give rise to an eminently reasonable inference that he fell from the equipment at least partly because of the absence of those safety devices."); Majeske v. Palm Beach Kennel Club, 117 So.2d 531, 533 (Fla. 2d DCA 1959) ("[T]he question of whether [defendant's] negligence was the proximate cause of the plaintiff's injury could be proven as conclusively by circumstantial as by parol evidence."); but see Wong, 676 So.2d at 983 ("[N]o evidence exists to sustain plaintiff's burden as to how the accident happened. In the absence of this evidence, plaintiff's cause of action must fail."). His testimony on the key issue of causation, however, was decidedly not. He stated as follows:
It is obvious that this testimony was not only well beyond the witness's supposed expertise but totally "conclusory in nature and ... unsupported by any discernible, factually-based chain of underlying reasoning." Div. of Admin. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981) (concluding "no weight may be accorded" such testimony). As Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957), explains:
See Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050, 1056 (Fla. 3d DCA 2009) ("[T]he `expert' testimony in this case
3. Finally, the appellee points to the obviously hearsay (but unobjected to) contents of a treating physician's report in the hospital records apparently referring to the now deceased's account of the accident:
Even putting aside the fact that no finding may be based even on unchallenged hearsay alone, see Rothe v. State, 76 So.3d 1010, 1011 (Fla. 1st DCA 2011) ("[A] court may not rely only on hearsay evidence to find a violation of community control."); Perry v. Bradshaw, 43 So.3d 180, 181 (Fla. 4th DCA 2010) ("[T]he trial court erred in relying on nothing but inadmissible hearsay."); Velilla v. Williams Island, 705 So.2d 1044, 1045 (Fla. 3d DCA 1998) (rejecting finding "based upon pure hearsay which is directly contrary to the only direct testimony on the point"), this evidence is also markedly deficient. This is because while the report says that the accident occurred as he was walking off the bus, the account was not only contrary to the established historical facts, but to the showing the plaintiff herself attempted to and was required to make: that the accident occurred as Mr. Gonzalez was going and fell down the steps as a result of their defective condition.
All of this was confirmed by a partial summary judgment granted in the hospital's favor some eight months before trial, in which the trial court correctly concluded:
Notwithstanding these findings, however, the court gave Mrs. Gonzalez the opportunity to prove her claim to a jury, concluding "[t]he only issue for the jury is whether the steps or some other factor caused the Decedent's fall." She did not carry that burden. Instead, Mrs. Gonzalez failed to provide evidence from which a jury could reasonably conclude that, more likely than not, the hospital steps were a substantial factor in bringing about her husband's fall. As Gooding, 445 So.2d at 1018, states:
See Claire's Boutiques v. Locastro, 85 So.3d 1192, 1195 (Fla. 4th DCA 2012); accord Fetterman and Assoc., P.A. v. Friedrich, 69 So.3d 965, 968 (Fla. 4th DCA 2011); Murphy v. Sarasota Ostrich Farm/Ranch, Inc., 875 So.2d 767, 769 (Fla. 2d DCA 2004); Proto v. Graham, 788 So.2d 393, 396 (Fla. 5th DCA 2001); see also Wroy v. N. Miami Med. Ctr., Ltd., 937 So.2d 1116, 1117 (Fla. 3d DCA 2006).
The judgment under review is therefore reversed for entry of judgment in the hospital's favor.
First, the trial court erroneously admitted the unsupported expert testimony to which we have already referred. See Samter, 393 So.2d at 1145; Arkin Constr. Co., 99 So.2d at 561; Trumbull Ins. Co., 2 So.3d at 1056.
Second, the trial court erred in admitting evidence of a prior slip and fall at the scene which was not similar to the one in question here. That ruling was made as as a purported "sanction" for an alleged discovery violation by the defendant. We have severe doubts as to whether a harmful violation occurred at all, see Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983), but even if it did, there was no justification — and we have found no authority to support — the admission of concededly otherwise inadmissible testimony, such as this to pollute the fair determination of issues before the jury. Thus, the punishment was way out of proportion to the alleged offense. See Gen. Motors Corp. v. Porritt, 891 So.2d 1056, 1059 (Fla. 2d DCA 2004) ("`[A] judge cannot simply `use his discretion to decide that despite a plain lack of substantial similarity in conditions he will, nevertheless, admit the evidence.' State v. Arroyo, 422 So.2d 50, 53 (Fla. 3d DCA 1982) (quoting Love v. State, 457 P.2d 622, 628 (Alaska 1969))."); see also Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 860 (Fla. 3d DCA 2007) (holding that the trial court abused its discretion in admitting evidence of past accidents where a substantial similarity between the accident at issue and the past accidents had not been established).