Willie v. American Cas. Co.

• Decision Date: 30 May 1989
• Docket Number: Nos. 88,s. 88
• Citation: 547 So.2d 1075
• Parties: Tammy WILLIE v. AMERICAN CASUALTY COMPANY, et al. Earl L. CHAMBERS, et al. v. FEDERAL REALTY INVESTMENT TRUST, et al. CA 0003, 88 CA 0004. 547 So.2d 1075
• Court: Court of Appeal of Louisiana — District of US

Page 1075

547 So.2d 1075

Tammy WILLIE v. AMERICAN CASUALTY COMPANY, et al.

Earl L. CHAMBERS, et al. v. FEDERAL REALTY INVESTMENT TRUST, et al.

Nos. 88 CA 0003, 88 CA 0004.

547 So.2d 1075

Court of Appeal of Louisiana First Circuit.

May 30, 1989.

Rehearing Denied Aug. 17, 1989.

Robert Manard, III, and Joseph McKearn, New Orleans, for plaintiff-appellee, Willie.

Joseph H. Simpson, Amite, and C. John Caskey, Baton Rouge, for plaintiff, Chambers.

Stephen C. Resor, New Orleans, for defendant-appellant Mut. Fire & Marine & Inland Ins.

Kevin O'Bryon, New Orleans, for Chicago Ins. Co.

Felicien P. Lozes, New Orleans, for Federal Realty Invest. and Pa. Mfrs.

Laurence E. Larmann, Metairie, for Home Ins.

Before EDWARDS, SHORTESS and SAVOIE, JJ.

SHORTESS, Judge.

Tammy Willie brought suit against American Casualty Company, Federal Realty Investment Trust, and ISM Associates, Inc., for damages incurred as a result of a severe gunshot injury on April 21, 1984, following her abduction from the Town and Country Shopping Center (Town and Country), owned by Federal Realty Investment Trust (FRIT) and operated by ISM Associates, Inc. (ISM) which manages all FRIT's "improved real property" pursuant to a management agreement between the two entities.

An amending petition named as defendant, additionally, Joe Nathan Jackson (Jackson), presently incarcerated in the Louisiana State Penitentiary in Angola, Louisiana, for, inter alia, the abduction of and assault upon Willie. A third amending petition named as additional defendants American Casualty Company (American), Pennsylvania Manufacturers Association Insurance Company (Pennsylvania), The Mutual Fire, Marine & Inland Company (Mutual), The Home Insurance Company (Home), Chicago Insurance Company (Chicago), and Fireman's Fund Insurance Company (Fireman).

On FRIT's motion, Willie's suit was consolidated with proceedings instituted by Earl L. and Brenda Hayden Chambers (hereinafter, all reference to "plaintiffs" will include Willie and the Chambers), the parents of Van Chambers, a companion of Tammy Willie, who was abducted along with her and fatally injured at her side. The Chambers' proceedings were instituted against FRIT, ISM, Davis Johnson (manager of Town and Country), and American.

On the eve of trial, settlements were entered into among plaintiffs and the insurers American, Pennsylvania, and Home, as well as FRIT, individually. ¹ A preliminary default was taken against Jackson. ²

Counsel for Chicago and Mutual moved for a continuance, asserting that they were unprepared to present an adequate defense in the post-settlement posture of the proceedings. The motion was denied and the matter went to trial. Chicago settled during the trial.

A verdict, in the form of jury interrogatories, was returned which found that FRIT and ISM were negligent and that such negligence was the proximate cause of Willie's injuries and Chambers' death; ³ the jury additionally found that the Town and Country premises were defective and a proximate cause of Willie's injuries and Chambers' death.

In answers to interrogatories as to the amount of damages to be awarded to Willie and the Chambers, respectively, the jury was told to calculate the total damages without regard to any amounts of previous settlements which had totalled approximately $2,000,000.00 and $300,000.00. The jury awarded $300,000.00 to Willie and $30,000.00 to the Chambers. Counsel for plaintiffs immediately requested that the court poll the jury. A side bar followed, the content of which is not part of the record. A colloquy between the court and the jury foreman resulted. The foreman indicated, after the court rephrased the verdict question, that the jury's intent was that the $300,000.00 and $30,000.00 awarded be construed to mean over and above the previous settlements. ⁴

Over Mutual's objection, the jury was polled, which confirmed that the awards were intended to be over and above the settlements. Willie's counsel requested that the judgment reflect these amounts as portions of the two totals and, additionally, that the judgment be against FRIT, ISM, and Mutual. Mutual objected to its inclusion in the judgment.

A judgment was signed against FRIT and ISM in solido for the Chambers in the amount of $330,000.00 and against ISM, FRIT, Mutual, and Jackson in solido for Willie in the amount of $2,223,000.00. An amended judgment revised the amount awarded to Willie to $2,523,000.00.

Mutual has appealed, assigning numerous errors which we group as follows: that the jury erred in its findings of fact; that the trial court erred in denying a continuance and in various evidentiary rulings during the course of the trial; and that the trial court erred at the close of the evidence in instructing the jury, revising the verdict and amending the judgment.

These assignments of error will be addressed in turn. At the outset we hold that the trial court was well within its discretion in denying the motion to continue. See Sparacello v. Andrews, 501 So.2d 269 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (La.1987). Mutual was a named defendant in the Willie proceedings and at no time argued to the trial court that there was a question with respect to coverage. It should have been prepared to conduct a defense.

EVIDENTIARY RULINGS

Code of Evidence article 802 provides that hearsay is not admissible except as specifically provided within the Code by other legislation. Code of Evidence article 803 catalogues the exceptions to this rule. The trial court accepted police incident reports of crimes occurring on Town and Country's premises based on the business records exception. Under the jurisprudence prior to the Code of Evidence, four factors were required of such records to be admissible under this exception:

(1) whether the person who himself made the record is unavailable for testimony, or production of said person would be a needless burden; (2) the writing is the first writing reflecting the transaction; (3) the records are identified at trial by one familiar with the bookkeeping procedure used by the business keeping the records, and (4) the evidence is reliable.

(citations omitted). American Supply Co. v. Genina Marine Services, 470 So.2d 964 (La.App. 1st Cir.1985).

Officer Olivia Ann Robinson of the Hammond Police Department testified that she collected reports from the Department's files reflecting incidents at Town and Country for the two-year period prior to April 21, 1984, and that such reports were maintained as a normal business practice. Testimony of the various authors of the reports unquestionably would have been an undue burden. Most, if not all, of these reports, however, are not the mental impressions of the authors themselves but rather that of victims or witnesses to the alleged crimes. The reports contain hearsay within hearsay. The reliability of the former is not without question. Cf. L & K Land, Inc. v. Billiot, 428 So.2d 1108, 1110 (La.App. 1st Cir.1983) (testimony of a sheriff's deputy based upon an oral report from another deputy as to the date an eviction notice was served was held to have been made during the normal operation of the sheriff's office and thus "vested with a guarantee of trustworthiness upon which that office [depended]" and therefore admissible).

Code of Evidence article 803(8) recognizes an exception to hearsay for, inter alia, "reports ... of a public office or agency setting forth ... [i]ts regularly conducted and regularly recorded activities [and] [m]atters observed pursuant to duty imposed by law...." Excluded from this exception, however, are "[i]nvestigative reports by police and other law enforcement personnel."

The reports were arguably introduced not for the veracity of the victims' or witness' statements therein but rather simply for the fact of the numbers and types of crimes being reported at Town and Country, which fact, plaintiff argues, ISM and FRIT were duty bound to know. There was no evidence whatsoever that either entity was aware of these reports, and Officer Robinson testified that the Hammond Police Department did not forward copies of the reports or any other data to either. However, we have not been presented with an instance of the introduction of the reports for the very limited purpose of showing what the operator (or owner) of Town and Country would have found had the effort been made, with an attendant instruction to disregard the hearsay statements contained within the reports. What we are presented with is the introduction of these reports under the business records exception, which we find to be error. For reasons expressed hereinafter, though, we find it harmless.

The inadmissible hearsay statements in these police reports are no more than a description of the alleged crimes. Anthony Nicholas Potter, Jr., plaintiffs' security expert, testified as to the type of criminal activity at Town and Country. The level of criminal activity was quite high. Potter conducts a security consulting business wherein he inspects shopping centers and other business establishments. Potter testified that his consulting business is approximately 75% shopping center management clientele, and that it is a standard of practice in the industry to get reports on criminal activity on shopping center premises from the local police department on a regular basis.

Potter's testimony addressed the factors that, in his opinion, determine the particular security needs of a shopping center:

A number of things, the size and configuration of the shopping center, the number of parking spaces, the tenant mix. Some types of tenants will attract more trouble, shall we say, than others. The location of the shopping center, whether or not it is accessible to public transportation, whether or not it is close to say a high school, whether or not it is close to another activity such as a premises that sells or serves alcoholic beverages that would generate security problems,...