EVIDENCE / CIVIL PROCEDURE Copyright February State Bar of California

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1 Copyright February State Bar of California Dave, owner of a physical fitness center known as "Dave's Gym," is being sued by Paul for negligence. Paul claims that he sustained permanent injuries as a result of an accident caused by faulty equipment supplied by Dave to Paul while Paul was working out at the gym. At the trial by jury, the following occurred: 1. Paul testified that while he was properly using the weight lifting equipment at Dave's gym, the equipment broke, causing his injuries. Proper admissible medical evidence regarding Paul's injuries was introduced. No other evidence was introduced. Paul then rested his case. Dave moved for a judgment as a matter of law (a directed verdict). The court denied the motion. 2. Dave introduced into evidence a fax received by Dave's Gym the day before the alleged accident. The fax recites on its face that it was sent by Paul, and it states that Paul would no longer use his membership at Dave's Gym because he had been injured at work. 3. Dave then called as a witness, William, a trainer at Dave's Gym, who testified that he was the person in charge of the gym the day of the alleged accident and that no one reported to him that any accident occurred on that day. 4. On cross-examination, over Dave's objection, William was asked if he had written in a log book that someone was injured at the gym on the date of the accident. The court permitted the question and instructed the jury that William's answer could be considered for impeachment only. 5. The case was given to the jury. During a break in deliberations, a juror went to a sporting goods store near the courthouse and inspected weight equipment. That juror reported the information obtained to the other members of the jury during deliberations, and these facts came to the court's attention before a verdict was returned. The court advised the parties of the juror's conduct. Dave moved for a mistrial. Assume that in each of the foregoing instances all appropriate objections were made. 1. Should the motion for judgment as a matter of law described in paragraph 1 have been granted? Discuss. 2. Was the evidence in paragraph 2 properly admitted? Discuss. 3. Was the evidence in paragraph 3 properly admitted? Discuss. 4. Did the court err in permitting the question and instructing the jury in paragraph 4? Discuss. 5. How should the court rule on the motion for mistrial described in paragraph 5? Discuss.

2 Copyright February Scott F. Pearce, Esq. Outline I. Dave's motion for a directed verdict was properly denied. A. Duty and Breach: Res Ipsa Loquitor B. Causation and Damages C. Conclusion II. The fax was properly admitted. B. Objection #1: Authentication C. Objection #2: Best Evidence D. Objection #3: Hearsay - Admisssion of a Party III. The trainer's testimony was properly admitted. B. Objection: Hearsay - Business Records Exception IV. The cross-examination of William was proper. B. The question was permissible. C. The jury instruction was incorrect. V. Dave's motion for a mistrial probably should be granted. A. The court should question the jurors. B. The court may dismiss the juror or declare a mistrial.

3 Copyright February Scott F. Pearce, Esq. Answer I. Dave's motion for a directed verdict was properly denied. Dave moved for a directed verdict after Paul rested his case. In order for the motion to be granted, Dave would have to show that he is entitled to judgment as a matter of law - that no reasonable jury could examine Paul's evidence in its most favorable light and then conclude that Paul had established a prima facie case. Paul has sued Dave for negligence. Paul wants to recover for personal injuries allegedly suffered while working out at Dave's Gym. A. Duty and Breach: Res Ipsa Loquitur Paul testified he sustained permanent injuries when Dave's weight lifting equipment broke. It is not unreasonable to conclude that his sort of accident ordinarily does not happen absent some negligence. Dave's Gym was at all times in control over the equipment. Paul testified that he was properly using the equipment at the time of his injury, and he also testified that he was injured. Paul can thus establish Dave's breach of duty via res ipsa loquitur. B. Causation and Damages Paul presented proper admissible medical evidence regarding his injuries. That evidence, combined with Paul's testimony about the events that allegedly occurred, would be enough for a jury to reasonably conclude that Dave's negligence was both the actual and proximate cause of Paul's injuries. C. Conclusion Paul's evidence, viewed in its most favorable light, establishes a prima facia case against Dave for negligence. The court properly denied Dave's motion for a directed verdict. II. The fax was properly admitted. Dave introduced into evidence a fax, allegedly from Paul, cancelling his membership to Dave's Gym

4 because he had been injured at work. This fax is relevant because it tends to disprove Paul's claim that his injuries were caused by Dave's negligence. The fax also suggests that Paul may have caused his own injuries by working out when she should not have been. B. Objection #1: Authentication Dave must offer evidence that the fax came from Paul. If Paul signed the document that was transmitted, his handwriting could be identified by an expert or by someone with personal knowledge of Paul's signature. If the document is unsigned, the fax may indicate which number the fax was sent from. This would be another way to authenticate the document. C. Objection #2: Best Evidence Dave is presenting a fax he received, as opposed to the original document that Paul transmitted. Under these circumstances, the fax will probably qualify as an original under the Federal Rules. It is the only version of the document in Dave's possession. Furthermore, it is an exact copy of what Paul allegedly transmitted. Assuming the document can be authenticated, it will survive a best evidence objection. California has a more liberal approach to the best evidence rule than the one used in the federal courts. Under the California rule, the fax will survive a best evidence objection. D. Objection #3: Hearsay - Admission of a Party The fax qualifies as an out of court statement by Paul, and it is being offered for its truth. It fits the traditional definition of hearsay, but the Federal Rules deem party admissions to be non-hearsay. Other jurisdictions would admit it as an exception to the hearsay rule. III. The trainer's testimony was properly admitted. William, the trainer, testified that he was in charge of Dave's Gym on the date in question, and that no one reported an accident to him. This is relevant because it casts doubt on Paul's story. B. Objection: Hearsay - Business Records Exception The absence of an injury report entry qualifies as hearsay. Still, the business records exception has been held to allow testimony about the absence of a record entry if under usual circumstances such a record ordinarily is kept. Assuming William would have made a record of an injury reported to him, his present testimony would survive a hearsay objection.

5 IV. The cross-examination of William was proper. William was asked on cross-examination if he had written in a log book that someone was injured at the gym on the date of the accident. The question is relevant because an affirmative answer would cast doubt on William's testimony discussed in III above. B. The question was permissible An attorney is given considerable latitude to question a hostile witness. Since William has already testified that no one reported an accident to him on the date in question, Dave's counsel may question William about possible evidence of Paul's accident. This question is not leading, although leading questions are permitted on cross-examination. It is not unduly argumentative. C. The jury instruction was incorrect. The court indicated that William's answer could be considered for impeachment only. If William answered "no" to the question, Paul could impeach him with the entry, but the presence of an entry should also be admissible as substantive evidence. If William answered "yes," he could then authenticate the statement, which would qualify as substantive evidence as a business record. V. Dave's motion for a mistrial probably should be granted. One of the jurors inspected weight equipment at a nearby store during a break in deliberations, and reported the information obtained to the other jurors before a verdict was returned. Dave has moved for a mistrial. A. The court should question the jurors. It is forbidden for jurors to do their own investigations, independent of the trial. The parties have a right to a fair jury, one that relies on the evidence presented at trial and on the judge s instructions. The facts presented suggest that Dave is not entitled to an automatic mistrial. The judge has the responsibility to question the jurors in order to determine the extent of any possible taint caused by the juror's misconduct. B. The court may dismiss the juror or declare a mistrial. If the jury has not been unduly tainted by the independent investigation of the single juror, the errant juror may be dismissed and replaced with an alternate. If the court determines that the taint is too serious to be mitigated by replacing a single juror, Dave's motion should be granted.