Anderson v. Malloy, 81-1923

• Decision Date: 09 March 1983
• Docket Number: No. 81-1923,81-1923
• Citation: 700 F.2d 1208
• Parties: Linda ANDERSON, Derriel Anderson, Appellants, v. James E. MALLOY, Peter Zes, Edward J. Gibson, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1208

700 F.2d 1208

Linda ANDERSON, Derriel Anderson, Appellants, v. James E. MALLOY, Peter Zes, Edward J. Gibson, Appellees.

No. 81-1923.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 11, 1982.

Decided March 9, 1983.

Wuestling & James, R.C. Wuestling, St. Louis, Mo., for appellees.

Richard E. Schwartz, Clayton, Mo., for appellants.

Before LAY, Chief Judge, and McMILLIAN and JOHN R. GIBSON, Circuit Judges.

LAY, Chief Judge.

Linda and Derriel Anderson appeal from a judgment on a jury verdict rendered against them in the United States District Court for the Eastern District of Missouri. The Andersons claim the trial court abused its discretion in excluding portions of the plaintiffs' evidence. We agree, and accordingly vacate the district court's judgment and remand the case for a new trial.

In January and February of 1979, the Andersons were guests in a motel in the St. Louis area owned and operated by the defendants, Malloy, Zes, and Gibson. On the evening of February 7, 1979, while Linda Anderson was alone in the motel room, an unknown assailant forcibly entered the room and assaulted and raped her.

The Andersons thereupon filed suit alleging diversity jurisdiction ¹ in federal district court in St. Louis, alleging that the defendants negligently failed to provide them with reasonably safe lodging, that the defendants breached an express warranty to provide reasonably safe lodging, and that the defendants fraudulently misrepresented the level of security provided to the motel's guests.

During the trial, the district court made four evidentiary rulings excluding portions of the plaintiffs' evidence. The court refused to admit (1) the testimony of a woman who was raped at the defendants' motel five months prior to the time Linda Anderson was raped, (2) evidence that an apartment complex adjoining the defendants' motel was a "breeding ground for crime," (3) evidence of security measures taken by other hotels and motels in the area of the defendants' motel, and (4) evidence that, after Linda Anderson was raped, the defendants installed safety chains and "peep holes" in the entrance doors of the motel rooms.

The motel owners argued in defense that they had done everything reasonably necessary to make their motel secure. The defendants also affirmatively claimed that Linda Anderson's injuries were proximately caused by her own negligence in opening her door in a strange city to a person she did not know. ²

The jury returned a verdict for the defendants, and the district court entered judgment on the verdict.

I. Testimony of the Prior Rape Victim.

The district court refused to admit the testimony of a woman who had been raped at the defendants' motel five months prior to the assault on Linda Anderson, in circumstances similar to the assault on Mrs. Anderson. The district court ruled that the evidence would be too prejudicial to the defendants, and accordingly excluded the evidence. ³

Although the general thrust of the Federal Rules of Evidence may be read to favor admission, United States v. Dennis, 625 F.2d 782, 797 (8th Cir.1980); United States v. Day, 591 F.2d 861, 878-79 (D.C.Cir.1978), ⁴ we nonetheless find no abuse of discretion by the district court in its ruling.

The plaintiffs offered the testimony of the other rape victim for the purpose of establishing that Linda Anderson was not contributorily negligent in opening her door to her attacker, since the prior rape victim also opened her door under similar circumstances. However, the prior victim's testimony was not relevant to the plaintiffs' case on this point. What another person may have done even in similar circumstances is not relevant to whether another party in a given case was negligent.

II. Evidence of the Adjoining Apartment Complex.

The district court also refused to admit the plaintiffs' proffered evidence that the apartment complex adjoining the defendants' motel was a "breeding ground for crime." The plaintiffs argue on appeal that the evidence was relevant to show that the defendants reasonably should have foreseen the attack on Linda Anderson. The trial court ruled that the evidence was not sufficiently relevant to justify admission. We agree.

The court did allow the plaintiffs' attorney to read into the record one-sentence summaries of seven crimes that had taken place at the defendants' motel from July 1977 to the time of the assault on Linda Anderson in February 1979. This evidence was admitted specifically for the purpose of showing foreseeability by the defendants of the assault on Linda Anderson. In these circumstances we find no abuse of discretion by the district court.

III. Evidence of Security Measures at Other Hotels and Motels.

The plaintiffs sought to introduce evidence of security measures taken by other hotels and motels in the area of the defendants' motel, for the purpose of showing whether the defendants had fulfilled their required standard of care in providing security for their guests. The district court excluded the evidence, holding that because of the unusual physical layout of the defendants' motel, evidence of the other hotels' security measures was not relevant.

The defendants' motel originally was an apartment complex which the defendants converted into short and long term motel accommodations. The grounds covered over 20 acres, and the motel was composed of 299 one, two and three bedroom units, all of which were on the ground floor, and all of which had separate entrances opening to the outside. There were no interior hallways or stairways connecting the units, nor was there any restaurant, lounge, or similar business on the premises.

Evidence of the customs and practices of a trade or industry does not establish the legal standard of care to which a party is held. The standard of care is the same whether or not a person conforms to the practices of others. ⁵

Nor does the fact that a person deviated from or conformed to an accepted custom or practice establish conclusively that the person was or was not negligent. However, custom or practice, if sufficiently similar to the situation in issue, generally has evidentiary value and may be considered by the trier of fact on the question of negligence. Bahamas Agricultural Industries Ltd. v. Riley Stoker Corp., 526 F.2d 1174, 1178 (6th Cir.1975); Baker v. S/S Cristobal, 488 F.2d 331, 333 (5th Cir.1974); Princemont Construction Corp. v. Smith, 433 F.2d 1217, 1220 (D.C.Cir.1970); Westborough Country Club v. Palmer, 204 F.2d 143, 147 (8th Cir.1953); Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 726 (Mo.1982) (en banc); W. Prosser, Handbook of the Law of Torts Sec. 33, at 168 (4th ed. 1971).

The precise question in this case is whether the defendants' motel was sufficiently similar to other area hotels and motels to make relevant the evidence of the security measures of the other hotels and motels.

For evidence of custom and practice to be relevant the circumstances surrounding the usual practice need not be precisely the same as those surrounding the situation at issue; it is sufficient if they are substantially similar. ⁶ The defendants' motel and the other hotels and motels serve the same purpose in the same way, they are located in the same area of the same city, and customers rely equally on each hotel and motel to provide proper security. We do not find that the difference in physical layout between the defendants' motel and the others vitiates the relevance of evidence concerning the security measures of the others. Such difference in layout may warrant an instruction to the jury that it may consider the difference in weighing the evidence, but it does not justify a ruling that the evidence is not relevant as a matter of law. The trial court generally has broad discretion in deciding whether to admit or exclude evidence, but as the Fifth Circuit has noted, "that discretion does not sanction exclusion of competent evidence without a sound, practical reason." Ramos v. Liberty Mutual Insurance Co., 615 F.2d 334, 340 (5th Cir.1980), cert. denied sub nom. Rucker Co. v. Shell Oil Co., 449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981).

We find that the trial court erred in excluding evidence of the security measures of other area hotels and motels. However, because of the rather tangential relevance of evidence of custom and practice, we do not find this ruling by itself to be so prejudicial to the plaintiffs that it alone would require us to remand the case for a new trial.

IV. Evidence of Subsequent Remedial Measures.

The plaintiffs attempted to introduce evidence to show that, after Linda Anderson was assaulted and raped, the defendants installed safety chains and "peep holes" on the doors of all units in the motel. The trial court refused to admit the evidence on the ground that Federal Rule of Evidence 407 "generally prohibits" the admission of such evidence.

Rule 407 prohibits the admission of evidence of subsequent remedial measures when the evidence is offered to prove negligence or culpable conduct. ⁷ However, the rule expressly does not require the exclusion of such evidence when offered for another purpose. Of course, to be admissible any evidence not excluded by rule 407 must still be relevant (Fed.R.Evid. 402) and its probative value must outweigh any dangers associated with its admission (Fed.R.Evid. 403).

The plaintiffs assert on appeal that the defendants controverted the feasibility of the use of peep holes and safety chains. Thus, the plaintiffs argue that the evidence comes within the exception of rule 407. Although the trial court held to the contrary, we find that the defendants did affirmatively controvert the feasibility of the chain locks and peep holes. We conclude that the trial court committed a prejudicial abuse of discretion when it excluded the evidence.

The first witness called by the plaintiffs was the defendant, Malloy, one of the owners of the motel. Malloy was asked by the...