Easterly v. Advance Stores Co., Inc.
Citation | 432 F. Supp. 7 |
Decision Date | 15 April 1977 |
Docket Number | No. CIV-2-76-10.,CIV-2-76-10. |
Parties | Calvin Curtis EASTERLY, etc., Plaintiff, v. ADVANCE STORES COMPANY, INC., Defendant. |
Court | U.S. District Court — Eastern District of Tennessee |
Robert L. Randal, Jr., Greeneville, Tenn., and Charles R. Terry, Morristown, Tenn., for plaintiff.
G. P. Gaby, and Thomas L. Kilday, Milligan, Coleman, Fletcher & Gaby, Greeneville, Tenn., for defendant.
This is a diversity action for damages for personal injuries to a 12-year-old child. 28 U.S.C. § 1332(a)(1), (c). Inter alia, the plaintiff claims that the manager of the defendant's retail store negligently sold a 9-year-old companion of such child a product which bore the warning: "Keep away from children."
The defendant moved for a dismissal for the failure of the plaintiff to state a claim on which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. It relied upon decisions from state courts in other jurisdictions* in which in allegedly analogous situations it was held as a matter of law that the consequences of similar sales were not foreseeable.
* * *"Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 805. Further: * * *"Scheuer v. Rhodes (1974), 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 963, 4.
This is a civil action seeking money damages for the defendant's alleged negligence in selling a product to the minor plaintiff. 28 U.S.C. § 1332(a)(1), (c). At the pretrial conference herein the plaintiff's objections to the defendant's exhibits nos. 11-31, inclusive, were sustained on the ground of irrelevancy. The defendant submitted a brief supporting its contention that such exhibits are relevant and thus admissible at the trial hereof. The plaintiff filed a brief in opposition.
The aforementioned exhibits, which were marked for identification only, consist of certain products similar to the product involved herein. Counsel for the defendant represents that the same were "* * * purchased from other retail merchants in the immediate locale of the defendant retailer, and under circumstances closely approximating the purchase by the instant plaintiff. * * *" The defendant contends that such exhibits are relevant, being probative of the issue of its duty of care owed to the plaintiff.
Of course, as was stated by Mr. Justice Holmes many years ago, "* * * what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. * * *" Texas & P. R. Co. v. Behymer (1903), 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905, 906; see also Wabash R. Co. v. McDaniels (1883), 107 U.S. 454, 2 S.Ct. 932, 27 L.Ed. 605, 608. It has further been stated that:
29 Am.Jur.2d 364-365, Evidence § 318.
In accordance with the foregoing principles, the rule seems well settled that "* * * evidence of the usual and customary conduct of others under similar circumstances is normally relevant and admissible, as an indication of what the community regards as proper, and a composite judgment as to the risks of the situation and the precautions required to meet them. * *" Prosser, Law of Torts (4th ed. 1971), 166, § 33. "* * * This conduct of others, then (1) is receivable as some evidence of the nature of the thing in question, because it indicates what is the influence of the thing on the ordinary person in that situation; but (2) it is not to be taken as fixing a legal standard for the conduct required by law. * * *" II Wigmore on Evidence (3d ed.) 489, § 461.
"* * * Customary practice is not ordinary care; it is...
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...648 (6th Cir.1976); see also Cherokee Ins. Co. v. E.W. Blanch Co., 66 F.3d 117, 123 (6th Cir.1995) (citing Easterly v. Advance Stores Co., Inc., 432 F.Supp. 7, 9 (E.D.Tenn.1976)) (noting that Tennessee courts have recognized the principle that "there are precautions so imperative that even ......
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...standard where an expert testifies to the "way everyone does it." CP at 714 (court's order). [5]in Easterly v. Advance Stores Co.. Inc.. 432 F.Supp. 7, 9 (E.D. Tenn., 1976), the court quoted two prominent treatises on the subject: "'evidence of the usual and customary conduct of others unde......
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