Lillie v. U.S.
Decision Date | 13 January 1992 |
Docket Number | No. 90-5182,90-5182 |
Citation | 953 F.2d 1188 |
Parties | , 34 Fed. R. Evid. Serv. 938 Nellie Lou LILLIE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Jefferson D. Sellers of Jack B. Sellers Law Associates, Sapulpa, Okl., and Laura Emily Frossard, Tulsa, Okl., for plaintiff-appellant.
Tony M. Graham, U.S. Atty., and Kathleen Bliss Adams, Asst. U.S. Atty., Tulsa, Okl., for defendant-appellee.
Before LOGAN, MOORE and ANDERSON, Circuit Judges.
Plaintiff Nellie Lou Lillie appeals from a judgment in favor of the United States in an action tried to the court under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Plaintiff asserts that it was reversible error for the trial judge to view the scene of the accident without providing the parties notice or an opportunity to attend, and with no court reporter present. In the alternative, she argues that an evidentiary hearing is required to determine whether the court's findings were based on the judge's view as evidence. 1
Plaintiff sustained injuries when she fell on the steps of the United States Post Office in Sand Springs, Oklahoma. As she descended the steps, holding on to a handrail, she allegedly tripped and broke her right ankle when she stepped into a spalled area on the second step from the bottom of the stairway. Plaintiff testified that because of the injury she plans to retire three years earlier than she had intended. After a bench trial, the district judge decided in favor of the government. In his findings of fact, the judge explicitly acknowledged taking a view of the accident scene, stating as follows: I R. tab 32 at 3. This view was taken without notice and without providing counsel for either party the opportunity to accompany the judge.
The issue presented is whether the district judge erred when he took the view without providing counsel the opportunity to attend, and, if so, whether taking an improper view is reversible error. We have never had occasion to rule on this issue of law, and federal court decisions provide only limited assistance. 2 In United States v. Walls, 443 F.2d 1220, 1223 (6th Cir.1971), a criminal case, the court held that it was reversible error for the judge to base his findings on a view that neither the defendant nor his attorney were allowed to attend. 3 In Price Brothers Co. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir.1980), appeal after remand, 649 F.2d 416 (6th Cir.), cert. denied, 454 U.S. 1099, 102 S.Ct. 674, 70 L.Ed.2d 641 (1981), the judge, presiding at a bench trial, allegedly asked his law clerk to view a machine. The Sixth Circuit remanded for a hearing to determine, inter alia, whether the clerk actually viewed the machine and whether the view was reported to the judge. Id. at 447. On appeal after remand, the court found harmless error because the view was not used as evidence. Price Brothers Co., 649 F.2d at 420.
We disagree with the Sixth Circuit holding in Price Brothers to the extent it indicates that a view sometimes is not evidence. We acknowledge that jurisdictions vary as to whether a view is treated as evidence or simply as an aid to help the trier of fact understand the evidence. 4 However, we believe such a distinction is only semantic, because any kind of presentation to the jury or the judge to help the fact finder determine what the truth is and assimilate and understand the evidence is itself evidence. The United States Supreme Court has stated that the "inevitable effect [of a view] is that of evidence, no matter what label the judge may choose to give it." Snyder v. Massachusetts, 291 U.S. 97, 121, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
The instant case, however, does not turn simply on whether a view is regarded as evidence. Most authorities agree that it is error for a judge to take a view without providing an opportunity for counsel to attend. See, e.g., Spencer A. Gard, 3 Jones on Evidence § 15:26 (6th ed. 1972) (); see also, e.g., Walls, 443 F.2d at 1223; Highbarger v. Thornock, 94 Idaho 829, 498 P.2d 1302 (1972); Evans v. City of Eufaula, 527 P.2d 329 (Okla.1974). But see Mutual Serv. Funeral Homes v. Fehler, 257 Ala. 354, 58 So.2d 770, 772 (1952) ( ). The critical question then becomes whether the error requires reversal.
We have found many state cases in which a judge in a bench trial took a view without providing an opportunity for counsel to attend. In each of the cases that were affirmed the appellate court found no indication that the trial court relied on the view in making its factual determination. See, e.g., Fehler, 58 So.2d at 772 ( ); Jones v. Abriani, 169 Ind.App. 556, 350 N.E.2d 635, 651 (1976) ( ); Morris County Land Improvement Co. v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232, 238 (1963) ( ); see also Evans, 527 P.2d at 331-32 ( ). Similarly, in the cases that were reversed the appellate court generally found the trial court findings did rely on the improper view. 5 See Noble v. Kertz & Sons Feed & Fuel Co., 72 Cal.App.2d 153, 164 P.2d 257, 259-60 (1945) ( ); Denver Omnibus & Cab Co. v. J.R. Ward Auction Co., 47 Colo. 446, 107 P. 1073, 1074 (1910) ( ); Brown v. Transcontinental Gas Pipe Line Corp., 210 Ga. 580, 82 S.E.2d 12, 15-16 (1954) ( ); Lobdell v. State, 89 Idaho 559, 407 P.2d 135, 140 (1965) ( ); Belmont Nursing Home v. Illinois Dep't of Public Aid, 108 Ill.App.3d 660, 64 Ill.Dec. 260, 439 N.E.2d 511, 514 (1982) ( ); Owings v. Talbott, 262 Ky. 550, 90 S.W.2d 723, 725 (1936) ( ); Valentine v. Malone, 269 Mich. 619, 257 N.W. 900, 904 (1934) ( ); Conner v. Parker, 181 S.W.2d 873, 874 (Tex.Civ.App.1944) ( ). We have found only one case in which the state court reversed on the basis of an improper view alone, without addressing whether the trial court relied on the view. See American Family Mut. Ins. Co. v. Shannon, 120 Wis.2d 560, 356 N.W.2d 175, 177 (1984) ( ).
An improper view is error because of the potential problems that may result. Without presence of counsel there is no way to be certain that the premises viewed are in the same condition as when the event occurred, or that the court does not view the wrong premises or objects. See Highbarger, 498 P.2d at 1304; Shannon, 356 N.W.2d at 179. When a judge engages in off-the-record fact gathering, he essentially has become a witness in the case. The presiding judge "may not testify in that trial as a witness." Fed.R.Evid. 605. Thus, when an improper view is taken the evidence obtained is admitted in contravention of the Federal Rules of Evidence. See also Fed.R.Civ.P. 43 ( ). When there is an improper view the parties have no opportunity to cross-examine, to object to the introduction of the evidence, or to rebut the evidence. "The fair and impartial administration of justice demands that facts be determined only upon evidence properly presented on the record." Price Bros., 649 F.2d at 419. Furthermore, because there is no record of the view, the litigants may effectively be denied any means of challenge on appeal.
In his opinion in the instant case, the district judge did not explicitly state whether he relied on the view in making his findings. One finding of fact, however, suggests that he did so rely:
I R. tab 32 at 6. This finding is in contrast to the testimony of plaintiff that she fell when she stepped into the spalled area on the step. The government's counsel cross-examined plaintiff as...
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