LAKELAND — An appeals court recently ruled that an 11-year-old boy can testify as a material witness in a personal injury lawsuit filed by his mother, claiming she was injured after her vehicle was rear-ended.

On April 19, the Florida 2nd District Court of Appeal granted certiorari relief to Akhnoukh A. Aknoukh and his son, Simon Bishoy Aknoukh, who are defendants in a motor vehicle accident suit. The appeals court quashed Circuit Court for Pinellas County’s protective order against the son of the plaintiff, Michelle Benvenuto, preventing him from testifying at the deposition.  

On May 10, 2014, Benvenuto was stopped at the exit of a gas station, waiting to turn right onto U.S. 19 when she was rear-ended by a vehicle operated by Simon Akhnoukh. Akhnoukh’s vehicle was owned by his father, according to court records.

Benvenuto's only passenger was her son, who sat in the front passenger seat and was 8 years old at the time. After the accident, Benvenuto subsequently filed a negligence action seeking damages for personal injuries, according to court records.

Among Akhnoukh’s affirmative defenses include that Benvenuto was negligent for failing use a fully operational seatbelt. Akhnoukh wanted her son deposed to discuss her health state during the accident, her actions and about her riding rollercoasters at a trip to Busch Gardens after the accident.

Benvenuto contends that her son is not a material witness because she can provide the same details.  

The court has found a witness to be material even when the relevant information could be obtained from a party. Also, the court said the minor is the only other person who lives with Benvenuto, and he would have “unique knowledge of his mother's day-to-day activities and how the accident affected her,” according to the court.

Additionally, Benvenuto was unable to state at the deposition which rollercoasters she rode after the accident. The minor’s testimony would allow the defendants to establish that despite her injuries and ongoing pain, Benvenuto rode rollercoasters of specific speeds and G-force intensities, according to court records.

This court found that the trial court did not require Benvenuto to establish good reasons for the protective order and instead accepted her argument based on her son’s age, lack of maturity and experience. She also did prove how taking the deposition would be detrimental to her son.

“The trial court made no findings of good cause and departed from the essential requirements of law in prohibiting the deposition,” according to court records. 

Furthermore, the appeals court added that the trial court can use its discretion to take measures to protect the minor’s well-being. For example, the trial court could order the boy be deposed before the court or a magistrate.

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Florida Second District Court of Appeal
1005 East Memorial Boulevard
Lakeland, FL 33801

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