Scheerer v. Hardee's Food Systems, Inc.

• Decision Date: 12 August 1996
• Docket Number: No. 95-1192,95-1192
• Parties: 45 Fed. R. Evid. Serv. 410 Cheryle Ann SCHEERER; John Scheerer, Appellants, v. HARDEE'S FOOD SYSTEMS, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 702

92 F.3d 702

45 Fed. R. Evid. Serv. 410

Cheryle Ann SCHEERER; John Scheerer, Appellants, v. HARDEE'S FOOD SYSTEMS, INC., Appellee.

No. 95-1192.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1995.

Decided Aug. 12, 1996.

William H. Pickett, Kansas City, MO, argued, for appellant.

Paul Paxton Hasty, Jr., Overland Park, KA, argued, for appellee.

Before McMILLIAN and LOKEN, Circuit Judges, and DUPLANTIER, ^* District Judge.

McMILLIAN, Circuit Judge.

Cheryle Ann Scheerer and her husband John Scheerer appeal from a final judgment entered in the United States District Court for the Western District of Missouri in favor of Hardee's Food Systems, Inc. (Hardee's), a North Carolina corporation, in their action to recover damages for personal injuries sustained when Mrs. Scheerer slipped and fell in the parking lot of a Hardee's restaurant. For reversal, the Scheerers contend that the district court erred in (1) admitting an incident report, (2) instructing the jury, (3) excluding certain expert testimony, (4) allowing certain closing arguments, and (5) committing other trial errors. For the reasons discussed below, we reverse the judgment and remand the case to the district court for further proceedings consistent with this opinion.

This is the second appeal. In the first appeal, this court reversed the grant of summary judgment in favor of Hardee's and remanded the case for further proceedings because there were genuine issues of material fact in dispute as to whether Hardee's created on its parking lot a slippery, dangerous or hazardous condition and whether that dangerous condition was the proximate cause of Mrs. Scheerer's fall and injuries. Scheerer v. Hardee's Food Systems, Inc., 16 F.3d 272, 275 (8th Cir.1994). We held there was sufficient evidence from which a reasonable jury could find that Hardee's parking lot was not reasonably safe for egress, the dangerous condition had been created by Hardee's agent or employees, and Hardee's failed to exercise reasonable care to make its parking lot reasonably safe or to warn its invitees of the dangerous condition and risk involved. Id.

On the evening of June 28, 1989, the Scheerers visited the Hardee's restaurant. A Hardee's employee had watered the plants around the restaurant shortly before the accident. Mrs. Scheerer had exited the restaurant and was walking across the parking lot when she slipped and fell behind a parked car. The Scheerers' theory of the case was that the surface of the parking lot was slippery due to a combination of water over oil and grease deposits and that Hardee's failed to warn its customers about the dangerous condition. Hardee's defended on several alternative theories: the surface of the parking lot was dry, not wet, and Mrs. Scheerer's hard-soled shoes caused her to slip and fall; if there was any dangerous condition on the parking lot due to oil or grease or water on its surface, Hardee's did not cause such a dangerous condition and had no notice of it; the dangerous condition on the parking lot was open and obvious as a matter of law; or Mrs. Scheerer had failed to keep a proper lookout.

At trial the district court excluded the testimony of the Scheerers' expert witness, a forensic consulting engineer, who would have testified about the coefficient of friction in relation to asphalt surfaces, degreasers and degreaser residue and his opinion about the cause of the accident. The district court admitted into evidence, over objection, an "incident report" prepared by a Hardee's employee that described the surface of the parking lot as dry, not wet or oily, and included the statement that "a friend explained [Mrs. Scheerer's] shoes were slick." The district court refused to give the Scheerers' proposed instruction A which eliminated the requirement of knowledge and gave instructions on notice (No. 7), open and obvious danger (No. 14), and proper lookout (No. 8). The jury found no liability on the part of Hardee's. The district court denied the Scheerers' motion for new trial and entered judgment in favor of Hardee's. This appeal followed.

First, we consider the Scheerers' contention that the district court abused its discretion in admitting into evidence the "incident report" as a business record under Fed.R.Evid. 803(6). ¹ Our standard of review regarding the admissibility of evidence is whether the district court abused its discretion, and a ruling on admissibility will not be reversed on appeal absent a clear and prejudicial abuse of discretion. E.g., Hicks v. Mickelson, 835 F.2d 721, 725 (8th Cir.1987). The incident report was prepared by a non-witness Hardee's employee and contained not only a description of the condition of the surface of the parking lot as dry, not wet or oily, but also a statement attributed to a "friend" of Mrs. Scheerer that the cause of the accident was Mrs. Scheerer's "slick shoes." Although the "friend" was not identified at trial, there was an inference that the friend was a Mrs. Fran, who was a trial witness. (The Scheerers describe Mrs. Fran as a neighbor and acquaintance rather than a friend.) The author who prepared the incident report did not testify. The Scheerers argue that even if the incident report was admissible as a business record, the statement in the incident report about the shoes should have been excluded as untrustworthy. The Scheerers also argue that the incident report was not admissible as a business record because it was prepared in anticipation of litigation.

Hardee's argues the incident report was admissible as a business record and was trustworthy because such reports are routinely made at or close to the time of an incident whenever a customer is injured or claims to have been injured. Hardee's argues that it is "perfectly clear" that the friend, that is, the source of the information in the incident report, was Mrs. Fran, who, Hardee's notes, was a trial witness. Mrs. Fran testified that she could not remember stating that the cause of the accident was Mrs. Scheerer's shoes. Hardee's also argues that the incident report rebutted the Scheerers' claim that the surface of the parking lot was wet at the time of the accident.

We hold the incident report was not admissible as a business record under Fed.R.Evid. 803(6) because the source of the information contained therein was never identified at trial. In particular, although we agree that Mrs. Fran was probably the "friend," it is unclear whether she was the source of the information about Mrs. Scheerer's shoes. In the absence of any evidence about the source of that information, we cannot test its reliability or trustworthiness. E.g., Meder v. Everest & Jennings, Inc., 637 F.2d 1182, 1187 & n. 6 (8th Cir.1981) (reference in police report about cause of accident should have been excluded because the author was not on the scene at the time of the accident, did not remember whether victim-plaintiff made a statement and did not recall with whom he spoke at the scene).

In addition, the incident report was inadmissible as a business record under Fed.R.Evid. 803(6) because it had been prepared in anticipation of litigation. Even if we assume that Mrs. Fran was the source of the information about Mrs. Scheerer's shoes, the incident report lacks reliability or trustworthiness because it was not made in the ordinary course of business ² but instead with the knowledge that the incident could result in litigation. E.g., United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.) (lensometer report prepared at behest of FBI and with knowledge that any information it supplied would be used in ongoing criminal investigation was not prepared and kept in ordinary course of eyeglasses business), cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993); Picker X-Ray Corp. v. Frerker, 405 F.2d 916, 922-23 (8th Cir.1969) (hospital report made by business manager after accident which he knew could result in litigation was not used for treatment or any other ordinary business purpose but instead with knowledge that incident could result in litigation). Here, the incident report shows on its face that it was prepared in anticipation of litigation and not in the ordinary course of Hardee's usual restaurant business operations. The directions on the incident report form instructed the person completing the form to "[g]et COMPLETE information," "[p]hone report within 30 minutes of incident, if serious," and "[f]orward written report same day." Other directions on the form noted that "[t]his form is to be used for reporting all types of incidents--Premises or Product Liability, Fire, Theft and Property Damage" and specifically instructed the person completing the form to distribute the white copy "[t]o your local claims office," the pink copy to the "Risk Management Dept.," and the yellow copy to the "Area Director of Operations."

In light of the importance of the incident report and the information contained therein about the condition of the surface of the parking lot and Mrs. Scheerer's shoes, the incident report was extremely prejudicial and therefore its admission was reversible error.

Because the business record issue alone justifies reversal and remand, we need not discuss the other issues raised on appeal. However, because the following issues may arise on remand, we discuss them briefly.

The Scheerers contend that the district court erred in giving certain instructions to the jury. We review jury instructions as a whole to determine whether they fairly and adequately instruct the jury as to the applicable substantive law. E.g., Tioga Public School District No. 15 v. United States Gypsum Co., 984 F.2d 915, 923-24 (8th Cir.1993). The district court has wide discretion in the formulation of jury instructions. E.g., Davis v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 906 F.2d 1206, 1212 (8th Cir.1990). "A judge is not required to give every proposed instruction, nor is he or she required to accept the...