Schoenvogel v. Venator Group Retail, Inc.

Decision Date09 July 2004
PartiesAndrea K. SCHOENVOGEL, a minor, who sues by and through her mother and next friend, Ava SCHOENVOGEL; and Ava Schoenvogel, individually v. VENATOR GROUP RETAIL, INC., d/b/a Lady Footlocker; and the estate of Anthony DaSilva, deceased.
CourtAlabama Supreme Court

John W. Haley and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham; and Richard S. Jaffe and Stephen A. Strickland of Jaffe, Strickland & Drennan, P.C., Birmingham, for plaintiffs.

John J. Coleman, C. Paul Cavender, and Ashley H. Hattaway of Burr & Forman, LLP, Birmingham, for Venator Group Retail, Inc., d/b/a Lady Footlocker.

Peyton Lacy, Jr., Brian R. Bostick, and Christopher A. Mixon of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for the estate of Anthony DaSilva.

HARWOOD, Justice.

Pursuant to Rule 18, Ala. R.App. P., we accepted the following certified question from the United States District Court for the Northern District of Alabama:

"A. Relevant Facts
"Plaintiff, Andrea Schoenvogel, was employed by defendant Venator Group Retail, Inc., d/b/a Lady Foot Locker at the Lady Foot Locker Store at the Riverchase Galleria in Birmingham, Alabama. She alleges that on August 2, 2000, she was raped by defendant Anthony DaSilva, her supervisor at the time. There were no witnesses to the alleged incident other than plaintiff and DaSilva. Plaintiff was examined at a hospital later on August 2, 2000, but there was no physical evidence of sexual assault. Anthony DaSilva's decomposed body was found hanging from a tree on August 14, 2000. DaSilva previously had been convicted in New York on charges of attempted rape in the first degree and criminal possession of a controlled substance.
"Andrea Schoenvogel 1 and her mother, Ava Schoenvogel, filed this action on June 27, 2001, in the Circuit Court of Jefferson County, Alabama. The named defendants are Venator Group Retail, Inc., d/b/a Lady Foot Locker and the Estate of Anthony DaSilva. The case was removed to federal court on July 27, 2001, on the basis of diversity jurisdiction. Andrea Schoenvogel alleges causes of action for negligent or wanton hiring, supervision, retention and entrustment; assault and battery; invasion of privacy; outrage; violation of the Employer's Liability Act, § 25-6-1, Alabama Code; and felonious injury in violation of § 6-5-370, Alabama Code. Andrea Schoenvogel's mother, Ava Schoenvogel, alleges a cause of action for loss of services.
"Defendants have filed a motion for summary judgment in this action. One of their arguments is that the Dead Man's Statute, § 12-21-163, Alabama Code, prohibits plaintiff from testifying about the alleged rape at trial or using her testimony about the alleged rape to defeat defendants' motion for summary judgment. Plaintiff contends that Rule 601, Ala. R. Evid., applies and allows her testimony about the incident.
"The Dead Man's Statute, § 12-21-163, Alabama Code, provides:
"`In civil actions and proceedings, there must be no exclusion of any witness because he is a party or interested in the issue tried, except that no person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness or has been taken and is on file in the case. No person who is an incompetent witness under this section shall make himself competent by transferring his interest to another.'
"Rule 601, Ala.R.Evid., effective January 1, 1996, states that, `Every person is competent to be a witness except as otherwise provided in these rules.' In the Advisory Committee's Notes to Rule 601, it is stated:
"`This rule supersedes any inconsistent statutory grounds of incompetency. Chief among these is Alabama's Dead Man's Statute. Ala.Code 1975, § 12-21-163. Superseding the Dead Man's Statute means that survivors will be allowed to testify, if their testimony otherwise complies with the rules of evidence, and that the unavailability of the deceased person will be merely a factor for the jury to consider in determining the weight to give the survivor's testimony. See Beddingfield v. Central Bank of Alabama, N.A., 440 So.2d 1051, 1052 (Ala.1983)(recognizing the significant body of scholarly criticism of the Dead Man's Statute). In superseding the Dead Man's Statute, Alabama follows the lead of such states as Alaska, Arkansas, Delaware, Hawaii, Iowa, Maine, Michigan, Mississippi, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, and Utah. See J. Weinstein & M. Berger, Weinstein's Evidence ¶ 601[03] (1990). See also 2 J. Wigmore, Wigmore on Evidence § 578 (Chadbourn rev.1979)(recognizing that the Dead Man's Statute is a survival from an earlier and much broader incompetency statute and characterizing its survival as `deplorable'); M. Ladd, Uniform Rules of Evidence — Witnesses, 523, 526 (1956) (characterizing the elimination of the Dead Man's Statute as one of the first steps in improving the law of evidence).'
"Despite the statement in the Advisory Committee Notes that the Dead Man's Statute has been superseded by the evidentiary rule, there is indication that the Dead Man's Statute is still viable. See Smart v. Sandy Spring National Bank of Maryland, [(No. Cw.99-0336-AH-C, February 23, 2000)] (S.D.Ala.2000) [not published in F.Supp.2d]; Evans v. Waddell, 689 So.2d 23, 30 (Ala.1997). It is essential to the outcome of this action to determine the applicability of the Dead Man's Statute to plaintiff's testimony about the alleged rape.
"B. Question of Law to Be Answered
"(1) Has the Alabama Dead Man's Statute, § 12-21-163, Alabama Code, been superseded by Rule 601, Ala. R. Evid. "1 Andrea Schoenvogel originally filed this action by and through her mother and next friend, Ava Schoenvogel. Subsequent to the filing of this action, Andrea Schoenvogel reached the age of majority."
I. This Court's Intention in Adopting Rule 601

The plaintiffs, Andrea K. Schoenvogel, a minor, who sues by and through her mother and next friend, Ava Schoenvogel; and Ava Schoenvogel, individually, and one of the defendants, the estate of Anthony DaSilva ("DaSilva's estate"), agree that this Court intended that Rule 601, Ala. R. Evid., supersede the Dead Man's Statute, § 12-21-163, Ala.Code 1975. (Schoenvogels' brief, pp. 24-28; Brief of DaSilva's estate, p. 24.) The other defendant, Venator Group Retail, Inc., d/b/a Lady Footlocker ("Venator"), does not necessarily agree, but essentially deflects the question by arguing that "[w]hether or not Rule 601 ever affected the Dead Man's Statute is really only an extraneous issue," because of Venator's perception that the Legislature has "repeatedly re-enacted the Statute subsequent to the adoption of Rule 601." (Venator's brief, p. 28.)

In 1988 this Court appointed a committee to consider the formal adoption of a body of evidence law. Professor Charles W. Gamble was appointed the reporter of the committee. In his article, "Drafting, Adopting and Interpreting the New Alabama Rules of Evidence: A Reporter's Perspective," 47 Ala. L.Rev. 1 (1995), he recounted the following history:

"The twenty-three member Committee on the Alabama Rules of Evidence held its first meeting on September 9, 1988. The work product of this group, after five years of drafting and debate under the administrative sponsorship of the Alabama Law Institute, was submitted to the Alabama Supreme Court on April 12, 1993. The Court then ordered that the proposed Alabama Rules of Evidence be circulated for discussion by being published in the advance sheets to the Southern Reporter. This order likewise invited the submission of written objections and scheduled oral arguments concerning the rules. Oral arguments were held before the Supreme Court of Alabama on October 7, 1993....
"Following these arguments, the Alabama Supreme Court took the proposed rules under advisement. Subsequently, a revised version of the Alabama Rules of Evidence, reflecting changes made in response to some of the written and oral arguments, was circulated for comment in the advance sheets to the Southern Reporter. The objections to the first version of the proposed Alabama Rules of Evidence resulted in the revision of several rules to reflect preexisting Alabama common law.... The second order, which resulted in the publication of the second version of the proposed rules, provided that comments would be allowed until December 30, 1994. A final hearing on the proposed rules was held on February 14, 1995. The supreme court then directed the Reporter of Decisions to prepare, in consultation with the Reporter to the Alabama Rules of Evidence Committee, a final draft. On July 19, 1995, the Alabama Supreme Court issued an order adopting the Alabama Rules of Evidence with an effective date of January 1, 1996. This order was accompanied by a final version of the rules."

47 Ala. L.Rev. at 3-4 (footnotes omitted). Professor Gamble further noted:

"Because of the historic and concurrent power exercised by the judicial and legislative branches over the law of evidence, however, the Advisory Committee was very careful to keep to a minimum the instances when the effect of any particular rule would abrogate a preexisting statute. A few such instances were nevertheless inevitable. The Dead Man's Statute, for example, is abrogated by

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