Brown v. J.C. Penney Co., Inc.

• Decision Date: 05 September 1984
• Docket Number: CA,No. 78-8085,78-8085
• Citation: 688 P.2d 811,297 Or. 695
• Parties: Rosabel BROWN, Respondent on Review, v. J.C. PENNEY COMPANY, INC., a foreign corporation; and May Department Stores Company, a foreign corporation, dba Meier & Frank Company, Defendants, W.H. Shields; H.A. Anderson; Joseph Fought and Allan Penney, dba Valley River Center; and H.A. Ellsworth, Petitioners on Review. A22384, SC 29951.
• Court: Oregon Supreme Court

Page 811

688 P.2d 811

297 Or. 695

Rosabel BROWN, Respondent on Review, v. J.C. PENNEY COMPANY, INC., a foreign corporation; and May Department Stores Company, a foreign corporation dba Meier & Frank Company, Defendants W.H. Shields; H.A. Anderson; Joseph Fought and Allan Penney, dba Valley River Center; and H.A Ellsworth, Petitioners on Review.

No. 78-8085, CA A22384, SC 29951.

Supreme Court of Oregon In Banc.

Argued and Submitted Dec. 5, 1983.

Decided Sept. 5, 1984.

[297 Or. 696-A] George A. Burgott, Eugene, argued the cause for petitioners on review. On the briefs were Darst B. Atherly, Sandra K. Paulus, and Atherly, Butler & Burgott, Eugene.

Daniel W. Goff, Eugene, argued the cause for respondent on review. With him on the brief was Goff & Smith, Eugene.

LENT, Justice.

The first issue is whether a computer printout was properly received in evidence over objection (1) that it was hearsay, (2) that it was not the original writings and no proper foundation was laid under former ORS 41.640(1)(e) ¹ to receive the printout as a "summary" of the original writings, and (3) that it was not relevant. We hold that the trial court did not err in receiving the printout.

The second issue is whether there was evidence received from which the jury could have found that every element of plaintiff's cause of action was established. This issue is presented by the trial court's denial of defendants' timely motion for a directed verdict. We hold there was such evidence.

I.

This is an action for damages allegedly resulting from negligence of defendants. ² Defendants, other than Ellsworth, were the owners and operators in the City of Eugene of Valley River Center (VRC), a shopping center comprised of numerous retail stores in a shopping mall surrounded by a parking lot. Defendants' answer admits that the lot was "operated, maintained and controlled" by the defendants "for the use and benefit of customers of" VRC.

On December 23, 1976, plaintiff, a customer, was attacked and robbed by a purse snatcher in the lot, resulting in serious physical injuries to plaintiff. Her action is purportedly based on the rules of law expressed in 2 Restatement (Second) of Torts, § 344:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or ³

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

More particularly, she relies upon comment f to § 344, which states:

"Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection."

This court "adopted" those rules as reflecting the law of this state in Whelchel v. Strangways, 275 Or. 297, 304, 550 P.2d 1228 (1976). See Uihlein v. Albertson's, Inc., 282 Or. 631, 639, 580 P.2d 1014 (1978).

Plaintiff alleged that defendants were negligent as follows:

"By failing to give Plaintiff a warning adequate to enable her to avoid the harm; [and]

"By failing to provide a reasonably sufficient security force to afford a reasonable protection from the harm."

To prove defendants' alleged failures in those respects, plaintiff adduced evidence from which it could be found that there were complaints to the Eugene Police Department (EPD) of incidents of criminal activity in and around the VRC lot, that the police officers taking and investigating the complaints made reports thereof to the EPD, and that the existence and content of the reports was readily available to the defendants.

Plaintiff offered a six-page computer printout prepared by EPD. Five pages were abstracts of some 268 reports by police officers of incidents of complaints of criminal activity in the immediate vicinity of VRC that had occurred between July and December, 1976, listed by the date of each report. The other page grouped the abstracts by crime category.

The testimony of Officer Goldsmith, the computer section supervisor when the printout was made in October, 1977, served as foundation for introduction of the exhibit. He testified that whenever a report by a police officer was written in Lane County or the City of Eugene, certain parts of the information from the report were stored in the police department's computer. According to Goldsmith's testimony, the printout was an accurate reflection of the information stored in the computer, as taken from the officers' reports. Another Eugene police officer, who appeared as defendants' witness, testified that such printouts were regularly used by the Eugene police to analyze crime rates in specific areas for the purpose, inter alia, of allocating police personnel to prevent crime.

The printout was received in evidence over the objections noted in the initial paragraph of this opinion.

After denying defendants' motion for a directed verdict, the trial court submitted the cause to the jury, which returned a verdict in favor of plaintiff. Defendants appealed from the judgment entered on the verdict, assigning error, inter alia, the admission of the printout in evidence and denial of the motion for directed verdict. ⁴

The Court of Appeals found no error and affirmed, Brown v. J.C. Penney Co., 64 Or.App. 293, 667 P.2d 1047 (1983). Answering defendants' contentions that the printout was hearsay and that it was a summary for which no proper foundation had been established, the Court of Appeals held that the printout was not excludable as hearsay because it was properly admitted under a statutory exception to the hearsay rule. The court's predicate for its holding was former ORS 43.370, ⁵ which provided:

"Entries in public or other official records, including books, data processing devices and computers, made by a public officer of this state or the United States in the performance of his duty or by another person in the performance of a duty specially enjoined by the law of either, are primary evidence of the facts stated."

The court held the printout was properly "certified" ⁶ by Goldsmith and was therefore admissible under former ORS 43.370.

As to the argument that the printout should not have been received as a summary because it had not been shown that the reports were too voluminous to present at trial and the reports themselves were not produced in court for examination by defendants, the Court of Appeals held that the same statute, former ORS 43.370, governed because that statute made the printout "primary" evidence.

The text of defendants' objection in the trial court on the ground of relevancy discloses that defendants objected because the printout contained reference to reports of crimes occurring outside the VRC and parking lot, in other words, not on premises under defendants' control. The Court of Appeals rejected this claim of error because

"There is no contention that all of the entries contained in the printout were irrelevant. Although defendants pointed out to the court specific entries that were arguably irrelevant, there was no motion to excise those but only a request that the entire exhibit be excluded. A general objection to evidence as a whole, if overruled, is not reversible error if some part is admissible."

64 Or.App. at 297, 667 P.2d 1047.

We allowed defendants' petition for review primarily to consider the argument that the printout was not admissible.

II.

We shall address the three objections in the order set forth in the first paragraph of this opinion.

Hearsay

On appeal the defendants asserted, and the plaintiff seemed to have assumed, that the trial court received the printout as an exception to the hearsay rule under the business records exception in former ORS 41.690, ⁷ which provided:

"A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."

Defendants concede that "the business records exception applies to the hearsay which is created when the public employee feeds the information from the police reports into the computer." They argue, however, that the exception does not apply to the earlier hearsay, i.e., the statement made by a complainant of crime to the police officer who eventually relates that statement in his report.

Our consideration of this argument requires us to determine for what precise purpose the printout was offered. If the purpose was to prove the truth of the statements of the various complainants of criminal activity, defendants' position is well taken; however, that was not the purpose of plaintiff's adducing this evidence. Plaintiff argues that the evidence was not offered to prove that the incidents...