Cook v. Hoppin, No. 85-1853

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore WOOD and FLAUM, Circuit Judges, and FAIRCHILD; HARLINGTON WOOD, Jr.
Citation783 F.2d 684
Decision Date07 February 1986
Docket NumberNo. 85-1853
Parties19 Fed. R. Evid. Serv. 1603 Mark R. COOK, Plaintiff-Appellant, v. Frederick B. HOPPIN, Defendant-Appellee.

Page 684

783 F.2d 684
19 Fed. R. Evid. Serv. 1603
Mark R. COOK, Plaintiff-Appellant,
v.
Frederick B. HOPPIN, Defendant-Appellee.
No. 85-1853.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 24, 1985.
Decided Feb. 7, 1986.

Page 687

Brent D. Holmes, Harlan, Heller, Ltd., Mattoon, Ill., for plaintiff-appellant.

Richard H. Narup, Heckenkamp, Simhauser & Brake, P.C., Springfield, Ill., for defendant-appellee.

Before WOOD and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff-Appellant Mark R. Cook ("Cook") brought this diversity action to recover for injuries he sustained while at an apartment complex in Lincoln, Illinois. Cook had travelled to Lincoln from Indiana to attend a friend's wedding. While in Lincoln, Cook had made arrangements to stay at the apartment of Larry and Debbie Alley. The apartment complex was owned by Defendant-Appellee Frederick B. Hoppin ("Hoppin").

At trial, Cook testified that he fell while climbing an exterior stairway that led to the Alleys' upstairs apartment and landed on a concrete sidewalk below. As a result of the fall, Cook sustained a probable basilar skull fracture and suffers from a permanent hearing impairment. Cook brought suit against Hoppin alleging that the stairway had been negligently constructed and maintained. After a jury trial, a verdict was returned in Hoppin's favor. Thereafter, Cook filed a post-trial motion requesting that the district court grant judgment notwithstanding the verdict on the issue of Hoppin's negligence and a new trial on the issue of Cook's alleged contributory negligence and on the issue of damages. In the alternative, Cook sought a new trial on all issues.

Cook premised his motion on five grounds. First, he contended that the district court erroneously admitted the testimony of Denise Glossop. At the time of Cook's fall, Glossop lived with her then husband Clifford Felton in an apartment just below the apartment rented by the Alleys. Glossop testified that she had heard during one evening in the winter of 1979 two men arguing and had later seen a man lying on the ground near the spot where Cook had fallen. She was unable to place the incident within any strict time frame and could not identify Cook as the individual she had seen lying on the ground. Indeed, the parties stipulated that Glossop's ex-husband, who also had seen someone lying on the ground, was prepared to testify that the individual was not Cook. Cook argued, among other things, that the probative value of Glossop's testimony was far outweighed by its prejudicial effect and that such testimony was therefore inadmissible.

Second, Cook contended that certain statements contained in his hospital records indicating that he had been injured "while engaged in a shoving or wrestling match" were inadmissible hearsay not subject to any exception to the hearsay rule. He maintained, therefore, that the district court improperly admitted these statements into evidence. Third, Cook contended that the district court erred in allowing Hoppin to argue to the jury that Cook was contributorily negligent for failing to use the interior stairway to the Alleys' apartment. Fourth, Cook contended that the court's jury instruction on "mere accident" was violative of the governing substantive state law. Finally, Cook alleged in his motion that he was entitled, as a matter of law, to a finding that Hoppin was negligent in the design, construction and maintenance of the exterior stairway.

The motion was denied and Cook appealed to this court raising the same five issues. For the reasons stated below, we reverse the decision of the district court and remand for a new trial.

I.

In a diversity action, "the standard for reviewing a trial court's disposition of a motion for a new trial is controlled by

Page 688

federal law...." Robison v. Lescrenier, 721 F.2d 1101, 1104 (7th Cir.1983). It is well-established that "[t]he authority to grant a new trial is confided almost entirely to the discretion of the trial court." Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315, 321 (7th Cir.1985) (citing Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980) (per curiam)). The district court's denial of a motion for a new trial should be overturned, therefore, only where the circumstances reveal a clear abuse of discretion.

Cook's first contention is that the district court did abuse its discretion in admitting the testimony of Denise Glossop. Cook initially relies on Fed.R.Evid. 901(a). In pertinent part Rule 901(a) provides:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

We find Cook's reliance on Rule 901(a) inapposite.

Rule 901(a) is applicable to offers of real proof as opposed to testimonial proof. See 5 J. Weinstein and M. Berger, Weinstein's Evidence p 901(a), at 901-15 (1983). Pursuant to Rule 901, items such as tape recordings, writings, records, and the like, must be authenticated and identified before they are admitted into evidence to ensure that the offered evidence is relevant to the issues being litigated. See Advisory Committee Note to Fed.R.Evid. 901(a). In the absence of some showing of a connection between the proffered real evidence and the material issues in the case, "the evidence is simply irrelevant." 5 J. Weinstein and M. Berger, Weinstein's Evidence p 901(a), at 901-20 (1983). In the instant case, however, we are dealing with the questionable relevance of Denise Glossop's testimony as opposed to the relevance of any proffered real evidence. Accordingly, Cook's argument that Glossop's testimony should be excluded on the basis of Rule 901 simply misses the mark.

Apart from his reliance on Rule 901, Cook also argues that Glossop's testimony should have been excluded as irrelevant pursuant to Fed.R.Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. In examining Cook's relevancy contention, the district court concluded that although Glossop could not identify Cook as the individual lying on the ground, "the likelihood of two such occurrences happening in one winter is no reason to strike her testimony" as irrelevant. The court did acknowledge that the parties had stipulated that Glossop's ex-husband's testimony would in part contradict her own testimony. Nonetheless, the court found that this went to the weight of Glossop's testimony and that the evidence was sufficiently relevant to be admissible.

After reviewing the record, we conclude that the district court did not abuse its discretion in denying Cook's motion for a new trial on grounds that Denise Glossop's testimony was erroneously admitted. In our judgment, the court properly concluded that Glossop's testimony, because it might aid a jury in determining what occurred prior to Cook's fall, "possesses sufficient probative value to justify receiving it in evidence." Advisory Committee Note to Fed.R.Evid. 401.

Finally, Cook appears to argue that even if Glossop's testimony is relevant, that it should have been excluded on grounds that "its probative value is substantially outweighed by the danger of unfair prejudice...." Fed.R.Evid. 403. In a situation where the probative value of certain evidence is sufficiently outweighed by its prejudicial effect, Rule 403 provides for its exclusion even though the evidence may be undeniably relevant. See Advisory Committee Note to Fed.R.Evid. 403. Although Glossop's testimony is not without its problems, we find that the district court did not abuse its discretion in ruling that the testimony was admissible.

Page 689

Cook's argument to the contrary appears to be based upon a false assumption that all prejudicial evidence is automatically excluded under Rule 403. We have no doubt that Glossop's testimony, to the extent that it indicates that Cook's fall might have been the result of his own negligence, is prejudicial to his case. By its very nature, however, "[r]elevant evidence is inherently prejudicial" to one side or the other involved in litigation. United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979). Accord Crawford v. Edmonson, 764 F.2d 479, 484 (7th Cir.1985) (U.S. appeal pending); United States v. Medina, 755 F.2d 1269, 1274 (7th Cir.1985). Rule 403 was never intended to exclude relevant evidence simply because it is detrimental to one party's case; rather, "the relevant inquiry is whether any unfair prejudice from the evidence substantially outweighs its probative value." United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir.) (emphasis added), cert. denied, --- U.S. ----, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984).

It is well settled that evidence is unfairly prejudicial only if it "will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented...." Medina, 755 F.2d at 1274. See Advisory Committee Note to Fed.R.Evid. 403. "Evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action may cause a jury to base its decision on something other than the established propositions in the case." 1 J. Weinstein and M. Berger, Weinstein's Evidence p 403, at 403-33-39 (1985) (footnotes omitted). This is the type of evidence that Rule 403 excludes as being unfairly prejudicial. See United States v. Zeuli, 725 F.2d 813, 817 (1st Cir.1984).

In the instant case, we find nothing in Glossop's testimony that would tend to induce the jury to make its decision on such an "improper basis." Accordingly, we...

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84 practice notes
  • U.S. v. Souffront, No. 00-2837.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 6, 2003
    ...evidence." The court must consider whether the probative value of the evidence outweighs its prejudicial value. See Cook v. Hoppin, 783 F.2d 684, 689 (7th Cir.1986). However, evidence of gang membership has been admissible in cases where the interplay between the people is central to provin......
  • Sherrod v. Berry, No. 85-3151
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 20, 1987
    ...renewed their objections at the time the evidence was admitted. Thronson v. Meisels, 800 F.2d 136, 142 (7th Cir.1986); Cook v. Hoppin, 783 F.2d 684, 691 n. 2 (7th Cir.1986); American Home Assur. Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324-325 (3d Cir.1985); Sprynczynatyk v. General......
  • United States v. Dish Network, L. L.C., No. 09–3073
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • December 11, 2014
    ...statement;” (2) “the circumstances under which it was made;” and (3) “the knowledge and qualifications of the declarant.” Cook v. Hoppin, 783 F.2d 684, 690–91 (7th Cir.1986) (citation omitted). Similarly, in construing Rule 804(b)(5), we have identified several additional factors that may b......
  • Amcast Indus. Corp. v. Detrex Corp., No. S88-620 (RLM).
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 18, 1991
    ...the statement, United States v. Marshall, 856 F.2d 896, 901-902 (7th Cir.1988); United States v. Guinan, 836 F.2d at 355; Cook v. Hoppin, 783 F.2d 684, 691 (7th Cir.1986), the extent of the declarant's personal knowledge of the events recounted in the statement, United States v. Doerr, 886 ......
  • Request a trial to view additional results
84 cases
  • U.S. v. Souffront, No. 00-2837.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 6, 2003
    ...evidence." The court must consider whether the probative value of the evidence outweighs its prejudicial value. See Cook v. Hoppin, 783 F.2d 684, 689 (7th Cir.1986). However, evidence of gang membership has been admissible in cases where the interplay between the people is central to provin......
  • Sherrod v. Berry, No. 85-3151
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 20, 1987
    ...renewed their objections at the time the evidence was admitted. Thronson v. Meisels, 800 F.2d 136, 142 (7th Cir.1986); Cook v. Hoppin, 783 F.2d 684, 691 n. 2 (7th Cir.1986); American Home Assur. Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324-325 (3d Cir.1985); Sprynczynatyk v. General......
  • United States v. Dish Network, L. L.C., No. 09–3073
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • December 11, 2014
    ...statement;” (2) “the circumstances under which it was made;” and (3) “the knowledge and qualifications of the declarant.” Cook v. Hoppin, 783 F.2d 684, 690–91 (7th Cir.1986) (citation omitted). Similarly, in construing Rule 804(b)(5), we have identified several additional factors that may b......
  • Amcast Indus. Corp. v. Detrex Corp., No. S88-620 (RLM).
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 18, 1991
    ...the statement, United States v. Marshall, 856 F.2d 896, 901-902 (7th Cir.1988); United States v. Guinan, 836 F.2d at 355; Cook v. Hoppin, 783 F.2d 684, 691 (7th Cir.1986), the extent of the declarant's personal knowledge of the events recounted in the statement, United States v. Doerr, 886 ......
  • Request a trial to view additional results

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