City of Miami v. Kho, 2019 Fla. App. LEXIS 15570 (Fla. 3d DCA 2019)

Court holds that photographs can be authenticated via pictorial testimony or the silent witness method.

The plaintiff sued the City of Miami for a 2010 trip and fall on a sidewalk that had an asphalt patch 1.25 inches lower than the adjoining concrete slab. In order to prove the city had constructive knowledge of the sidewalk’s condition, the plaintiff sought to admit a Google Maps photograph of the subject sidewalk dated November 2007. At trial, the plaintiff introduced the photograph through her expert, who testified that there was no substantial difference between the Google Maps photograph and a photograph of the sidewalk taken on the date of the plaintiff’s accident. Despite no testimony from anyone with knowledge of the sidewalk’s condition in November 2007 or from a Google Maps representative with control over or knowledge of the Google Maps system, the trial court admitted the photograph over the city’s objection. The trial court ultimately ruled the Google Maps photograph established constructive knowledge in denying the city’s motion for directed verdict. The jury returned a verdict for the plaintiff. On appeal, the Third District Court of Appeal held that photographs can be authenticated via pictorial testimony or the silent witness method, and that the Google Maps photograph had not been properly authenticated by either method. The appellate court reversed and remanded with instructions to enter judgment for the city.


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