Pau v. Yosemite Park and Curry Co.
| Decision Date | 22 March 1991 |
| Docket Number | No. 89-15511,89-15511 |
| Citation | 928 F.2d 880 |
| Parties | , 14 UCC Rep.Serv.2d 79, 33 Fed. R. Evid. Serv. 478 Alan Koon To PAU, Jin-Si Pau, a minor, by Alan Koon-To Pau, as guardian ad litem; Jin-Yi Pau, a minor, by Alan Koon-To Pau, as guardian ad litem; Estate of Wai-Ching So, Plaintiffs-Appellants, v. YOSEMITE PARK AND CURRY COMPANY, an MCA Company, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard L. Schneider, Brunn & Flynn, Modesto, Cal., for plaintiffs-appellants.
David H. Brent, McCormick, Barstow, Sheppard, Wayte & Carruth, Fresno, Cal., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before CHOY and FLETCHER, Circuit Judges, and FITZGERALD, District Judge. *
This case involves a fatal bicycle accident in Yosemite National Park. A jury found the Defendant-Appellee Yosemite Park and Curry Company (Curry Company) not liable for the death of Eleanor Wai Ching So. Plaintiffs-Appellants, the children and husband of the decedent (the Paus), argue a new trial is necessary for numerous reasons. On the basis of our consideration of certain of these issues we reverse the judgment of the district court and remand for a new trial.
The family of decedent Eleanor Wai Ching So came to the United States from After sight seeing at the top of the Mirror Lake Trail, the family started back down. The family thought Eleanor was going to walk her bike down the trail behind the others, who were going to ride. Evidently Eleanor changed her mind and decided to ride. Upon hearing her frightened screams for pedestrians to get out of her way, the family turned to see Eleanor rushing rapidly down the hill with her feet off the pedals. Eleanor then hit a pedestrian from behind and fell to the ground. She hit her head in the fall and lost consciousness.
Hong Kong for a summer vacation in 1985. While visiting Yosemite National Park, the family was given a brochure showing numerous bike trails, including the Mirror Lake Trail, and advertising Curry Company's bicycles. The brochure recommended Mirror Lake Trail as a paved rode closed off to automobile traffic, and thus a "safe and enjoyable cycling area." The family decided to rent bicycles from Curry Company and ride to Mirror Lake. Curry Company was the sole source of bike rentals in Yosemite, and rented only bicycles with "coaster-style" brakes. "Coaster" brakes work by pushing backwards on the pedals, as contrasted with "hand brakes," which work by squeezing levers mounted on the handle bars. Curry Company provided a helmet only to the youngest child, who rode in a child's seat
Eleanor was taken to a nearby clinic and then flown by helicopter to a hospital in Modesto. She died in the hospital several days later. Allegedly, she came out of her coma on the second day, but only long enough to indicate that she needed to use the bathroom, and to say that "the brakes failed."
Park Ranger Bryant arrived at the accident site shortly after the mishap. Ranger Bryant interviewed Eleanor's husband, Alan, about what he saw. He said that his wife had forgotten about the brakes and panicked. After the ambulance had taken Eleanor away, Bryant tested the bicycle's brakes.
At this point there is some confusion about what occurred. Ranger Bryant either returned the bicycle to Curry Company or impounded it pending an investigation. The attorney for Curry Company attempted to explain the mix-up to the district court in a sworn declaration. The attorney stated that Ranger Bryant had taken the accident bicycle to the hospital, where Curry employees examined the bicycle. Then Ranger Bryant logged the bicycle into evidence, and the bicycle was put in an impound garage used to store evidence.
Bryant claimed to have taken the bicycle out of evidence storage to test it a second time. Bryant then wrote in his accident report that the bicycle had been released back to Curry Company. He later explained that he assumed that shortly the bicycle would be released back to Curry Company, but that he put it back into evidence storage. The head of law enforcement for Yosemite National Park, Lee Shackelton, stated in deposition testimony that the accident bike was never released back to Curry Company; rather it remained in the evidence storage facility until moved to a storage facility in Fresno at the request of Curry Company's attorney. The bicycle moved to Fresno was red and identified as number 844.
The Paus' counsel received Ranger Bryant's accident report and assumed that the accident bicycle had been returned to Curry Company. Consequently, he requested that Curry Company's risk manager, James Edeal, retrieve the bicycle so it could be examined. Edeal also believed that the bike had been returned to the bike stand, so he obtained bicycle number 844 from the shop. This bike was blue, and allegedly performed poorly on a brake test performed by the clerk for the Paus' attorney.
When it became clear that there was a mix-up and that two bicycles were numbered 844, 1 a representative for Curry Company wrote to the Paus' counsel and explained that counsel had examined the wrong bike. The Paus' attorney requested At some point after the accident but prior to trial, Curry Company implemented a policy of prohibiting renters of its bicycles from riding on the Mirror Lake Trail. In preparation for this litigation, the Paus' attorney went to the Curry Company rental shop and secretly videotaped an employee telling renters that the Mirror Lake Trail was dangerous, that serious accidents involving rental bikes had happened there in the past, and that now Curry Company prohibited the use of its bikes on that trail. In addition, the United States Park Service placed a sign at the foot of Mirror Lake Trail prohibiting rental bikes from using the trail.
that both bikes be produced for examination in Palo Alto. Curry Company only produced the red bicycle. Curry Company subsequently had the blue bike shipped to Fresno to be stored with the red one, and then notified the Paus that both bikes were available for inspection.
The Paus' first amended complaint contained tort claims and claims for breach of warranty based on damages resulting from Eleanor's fatal bicycle accident. The Paus also sued Curry Company for intentional spoliation of evidence in anticipation of litigation.
The Paus moved for summary judgment on their spoliation of evidence and express warranty claims. Curry Company made a cross-motion for summary judgment on the spoliation of evidence claim. The Paus also made a motion to strike Curry Company's answer for discovery abuse based on the same allegations on which the spoliation of evidence claim was based.
The district court determined that Curry Company's conduct in the accident bike mix-up did not warrant the extreme sanction of striking its answer and entering a default judgment in favor of the Paus. The district court also entered summary judgment against the Paus on their spoliation of evidence claim because it deemed the discovery mix-up unintentional and because both bikes were available for inspection prior to trial.
In addition, the district court refused to enter summary judgment against Curry Company on the express warranty claim despite the fact that Curry Company had failed to respond to that portion of the Paus' motion. The district court ruled that the representation that formed the basis of the Paus' express warranty claim concerned the bicycle trail, and thus was not connected with the rental of the bicycle. The court considered this claim mislabeled, and would only allow it to go forward as a negligent or intentional misrepresentation claim.
The case proceeded to trial. The parties stipulated that the red bike was the accident bike. The district court made several rulings out of the presence of the jury. It ruled that any evidence of subsequent remedial measures would be excluded under Fed.R.Evid. 407, unless offered for proof of feasibility of changes or to show control, if controverted, or for impeachment purposes. Further, the district court refused to allow the introduction of California's bicycle trail standards.
Finally, the district court refused to allow the alleged statement made by Eleanor that "the brakes failed" to be presented to the jury. The court held that it was inadmissible hearsay and that none of the exceptions to the hearsay rule applied.
After five days of trial, the jury entered judgment in favor of the defendant. Plaintiffs moved for judgment notwithstanding the verdict (j.n.o.v.), which the court took under submission but subsequently denied. The Paus timely appealed.
The Paus argue that the district judge should have recused himself from this case, sua sponte, because of his bias against the Paus and their counsel. In making this argument the Paus rely on 28 U.S.C. Sec. 455(a) (1988), which requires a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The Paus failed to make a recusal motion to the district court.
While such a failure "does not preclude raising on appeal the issue of recusal under Sec. 455," it does increase their burden in demonstrating that the district judge erred in not recusing himself. Noli v. Commissioner, 860 F.2d 1521, 1527 (9th Cir.1988).
The Paus cannot sustain that burden here. All of their allegations relate to incidents during the course of the proceedings, and recusal under section 455 is required "only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding." Toth v. TransWorld Airlines, 862 F.2d 1381, 1388 (9th Cir.1988).
Even if we were to view the Paus' recusal claim as a charge of judicial misconduct, their appeal on this...
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