David by Berkeley v. Pueblo Supermarket of St. Thomas

• Decision Date: 24 July 1984
• Docket Number: No. 83-3180,83-3180
• Citation: 740 F.2d 230
• Parties: 15 Fed. R. Evid. Serv. 2055 Kenrick DAVID, by his mother and next of friend Juliette BERKELEY and Juliette Berkeley on her own behalf v. PUEBLO SUPERMARKET OF ST. THOMAS. Appeal of PUEBLO SUPERMARKETS OF ST. THOMAS, INC.
• Court: U.S. Court of Appeals — Third Circuit

Page 230

740 F.2d 230

15 Fed. R. Evid. Serv. 2055

Kenrick DAVID, by his mother and next of friend Juliette BERKELEY and Juliette Berkeley on her own behalf v. PUEBLO SUPERMARKET OF ST. THOMAS Appeal of PUEBLO SUPERMARKETS OF ST. THOMAS, INC.

No. 83-3180.

United States Court of Appeals Third Circuit.

Argued April 23, 1984.

Decided July 24, 1984.

Richard H. Hunter, argued, Isherwood, Hunter & Colianni, Christiansted, St. Croix, U.S.V.I., for appellant.

Desmond L. Maynard, argued, Law Offices of Desmond L. Maynard, Soraya Diase, of counsel, Charlotte Amalie, St. Thomas, U.S.V.I., for appellees.

Before SEITZ, Chief Judge, and GARTH and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This negligence action was instituted by a business invitee against the owner and operator of a supermarket chain for personal injuries allegedly sustained as a result of a slip and fall in one of the defendant's supermarkets. The defendant appeals from an adverse jury verdict awarding the plaintiffs, mother and child, compensatory and punitive damages.

The defendant asserts on this appeal that the district court committed reversible error in denying its motion for judgment notwithstanding the verdict or, in the alternative, a new trial because (a) the question of punitive damages submitted to the jury was premised upon an inadmissible and insufficient hearsay statement; (b) evidence as to plaintiff's prior testimony regarding the cause of her injuries was excluded and (c) plaintiffs' negligence claims were submitted to the jury without sufficient evidence. Moreover, the defendant claims that the court abused its discretion in denying its request for a remittitur.

After a careful examination of the entire record, we agree with the defendant that there is insufficient evidence to support the award of punitive damages. Consequently, we will vacate the award of punitive damages. In all other respects, however, we will affirm the judgment of the district court.

I.

Plaintiff-appellee, Juliette Berkeley ("Berkeley") initiated this negligence action individually and on behalf of her son, plaintiff-appellee, Kenrick David, seeking damages for personal injuries. Berkeley testified that while grocery shopping on May 1, 1979 at a supermarket owned and operated by Pueblo Supermarkets of St. Thomas, Inc. ("Pueblo Supermarkets"), she slipped and fell on a substance later identified as cottage cheese. At the time of the fall, Berkeley was approximately eight months pregnant and weighed 217 pounds. The evidence presented at trial indicates that, while in the company of Hugh David and a friend, Rosanell Phipps ("Phipps"), Berkeley fell twice, once directly on her stomach. ¹ She claimed to have suffered injuries to her back and knee as well as to her unborn child. Hugh David, the father of Kenrick David, testified that another shopper, Susan Jacobs ("Jacobs"), in the same aisle at the time of Berkeley's fall, stopped and stated that she had informed "them" of the substance on the floor "about an hour and a half ago." Berkeley testified that Susan Jacobs stated she just told "them" about the substance while Phipps recalled only that Jacobs told Berkeley "to be careful."

The defense introduced evidence at trial that on May 30, 1979, five days prior to giving birth, Berkeley was involved in an altercation on a bus with one Maude Tonge. In a criminal proceeding on August 17, 1979, ² arising out of the assault, Berkeley testified that she had been hit in the stomach by Tonge.

On June 4, 1979, Berkeley was admitted to Knud Hansen Memorial Hospital in St. Thomas in active labor. A pelvic examination revealed that the unborn child's left arm had prolapsed into the birth canal and that his shoulder was impacted against Berkeley's pelvic bone, necessitating a caesarean section. Kenrick David was subsequently born with numerous injuries to his upper left extremities, including a bruised and swollen left arm and shoulder, an inability to fully extend his left arm, immobility of his left fingers and a probable fracture of the left elbow joint.

Juliette Berkeley and Kenrick David alleged that their injuries occurred as a result of Berkeley's fall at Pueblo Supermarket. Pueblo Supermarket denied liability on the ground that Kenrick David's injuries were caused either by the assault upon Berkeley five days prior to Kenrick David's birth and/or the medical complications Berkeley experienced during childbirth. An expert medical witness appearing on behalf of the plaintiffs testified that Berkeley's fall at the supermarket was the most probable cause of Kenrick David's injuries. Defendant's medical experts, on the other hand, testified that either the complications during delivery or the assault on the bus caused Kenrick David's injuries.

The jury found for the plaintiffs and awarded Kenrick David $80,000 in compensatory damages and Berkeley $30,000 in compensatory damages. Additionally, the jury awarded each plaintiff $50,000 in punitive damages.

II.

This court must determine "whether, viewing the evidence in the light most favorable to the plaintiff and guided by applicable principles and rules of law, a jury could reasonably have imposed liability" on Pueblo Supermarket. Rumsey v. Great Atlantic and Pacific Tea Company, Inc., 408 F.2d 89, 89-90 (3d Cir.1969) (in banc). The plaintiffs had the burden of establishing negligence on the part of Pueblo Supermarket by a preponderance of the evidence. The plaintiffs had to establish that the store or its agent was negligent in that the supermarket had either direct or constructive notice of the foreign substance on the floor as a potentially dangerous condition. Restatement (Second) of Torts Sec. 343 (1965). The plaintiffs attempted to prove notice on the negligence issue as well as on the issue of punitive damages solely by hearsay testimony.

We will therefore address first the admissibility of the hearsay statement as an "excited utterance." Assuming arguendo that the statement was properly admitted into evidence, we will then consider (a) whether it was sufficient to support liability for negligence and an award of compensatory damages and (b) whether it was sufficient evidence to support an award of punitive damages.

A. Admissibility of Hearsay Statements-Excited Utterances

Slip and fall cases involving foreign substances on the floors of grocery markets present the plaintiffs with a difficult task of proof. The major issues ordinarily involve the following:

(1) Was there a foreign substance on the floor?

(2) What notice, either actual or constructive, did the employees or the management have of this particular condition which involves "an unreasonable risk of harm" to the business invitees?

(3) Absent direct testimony proving actual notice, was the foreign substance on the floor long enough to give management or employees constructive notice of this potential "unreasonable risk of harm"?

See generally, Restatement (Second) of Torts Sec. 343 (1965).

Normally there is no problem in establishing the presence of a foreign substance on the floor--the plaintiff can testify as to what he or she observed. However, the issue of prior notice to the store, either actual or constructive, of an unreasonable risk of harm is more difficult to establish. A customer does not send an inspection team before walking down the aisles of a store which he or she will visit. Thus, even though one proves the presence of a foreign substance at the time of the fall, the mere presence of the foreign substance does not establish whether it had been there a few seconds, a few minutes, a few hours or even a few days before the accident. ³ Confronted with this dilemma and without direct testimony as to how long the cottage cheese had been on the floor, the plaintiffs attempted to fill the evidentiary gap by introducing testimony of what a third party had purportedly stated at the time of the incident. Hugh David, the father of Kenrick David, testified as follows:

I went to try to help her up and then Rosanell came and both of us lift her up and right away as we lift her up, there is a young lady said like this, 'I told them to clean it up about two hours ago--an hour and a half ago.' "

Appendix at 97 (grammatical errors in original; emphasis added). Hugh David said that the "young lady" who had made the critical statement as to what she had told "them ... two hours ago" was Susan Jacobs.

In this case, however, we have a conflict of testimony. Berkeley recollected Jacobs as saying "I just told them about that," and Hugh David remembered her saying she told "them" about it "two hours ago--an hour and a half ago." Rosanell Phipps remembered no such statement; instead, she remembered Jacobs as warning Mrs. Berkeley to "be careful." Assuming arguendo the district court was correct in admitting these hearsay statements into evidence for the truth of the matter asserted, it was a question of fact to be decided by the jury as to which version of Jacobs' statement was more credible. ⁴

Though the plaintiffs introduced witnesses who testified as to what Susan Jacobs purportedly stated at the time of the incident, the plaintiffs did not call Susan Jacobs to testify nor was any reason given on the record explaining why she was not called. In fact, if one were writing a mystery story about the incident in question, one could entitle it "The Missing Witness--the Case of Admissible Hearsay" with the subheading, "What would Susan Jacobs have said had she testified in court?"

Unfortunately, the plaintiffs rely on Susan Jacobs' purported statement as the essential link to establish proof of the defendant's negligence. It was the truthfulness of Susan Jacobs' statement that plaintiffs relied on to establish that Pueblo Supermarket was liable "for physical harm caused to [its] invitees" because of a condition--the cottage cheese spilled on the floor--which defendant "knows [of] or by the...