Opinion
Case No. 03-2424-DJW.
October 29, 2004
MEMORANDUM AND ORDER
This is a negligence case based on premises liability. Currently pending before the Court is Defendant's Motion in Limine (doc. 23), which seeks to exclude testimony from Plaintiff on various issues, as well as evidence regarding remedial measures. Upon consideration of the arguments presented, and as explained below, the pending Motion is granted in part and denied in part.
RELEVANT FACTUAL BACKGROUND
In his capacity as an auto parts delivery driver, Plaintiff delivered metal tubing to Defendant's place of business on August 28, 2001. Plaintiff was directed to place the tubing on a storage rack inside Defendant's premises. The storage rack had been constructed by Defendant a number of years prior to August 28, 2001 and was not affixed to the wall or floor.
Plaintiff alleges that while loading the tubing on the storage rack, both the metal tubing and the storage rack fell onto him, causing him to fall to the ground and be seriously injured. Plaintiff alleges that by constructing the rack to hold metal tubing, but failing to secure the rack to the wall, Defendant created and maintained an unreasonably dangerous condition, which ultimately caused the rack, with the metal tubing, to fall over on Plaintiff and to cause Plaintiff serious injury.
Notably, and relevant to the pending Motion, Defendant disputes Plaintiff's allegation that the storage rack actually fell over. To that end, Defendant seeks to exclude at trial:
• Testimony from Plaintiff that the storage rack fell over, on grounds that Plaintiff has no personal knowledge of the rack falling; and
• Testimony from Plaintiff conveying statements allegedly made by Bryan Barthol (owner of Defendant Prairie Center Muffler) to Plaintiff's supervisor and co-worker regarding the accident, on grounds that such testimony is inadmissible hearsay.
Defendant also seeks to exclude at trial evidence of any remedial measures taken after the accident with respect to placement of the storage rack or changes in company procedures, on grounds that such subsequent remedial measures are inadmissible pursuant to federal rule.
A. Testimony from Plaintiff that the Storage Rack Fell Over
Defendant asserts Plaintiff has no personal knowledge that the storage rack fell over and that any testimony by him regarding such a suggestion would be inadmissible pursuant to Rule 602 of the Federal Rules of Evidence. The Court disagrees.
Rule 602 states:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
When viewed in isolation, the specific portion of Plaintiff's deposition submitted by Defendant suggests that Plaintiff did not actually see the rack fall or tip over and, that after the accident, Plaintiff failed to ascertain where the rack was located. With regard to this issue, however, Plaintiff also testified as follows:
Q. On this occasion, did the rack fall on you as well, or just the tubing?
A. The end of the rack, the shelving that came out was tubing, and apparently one of the shelving tubing caught my back and it came down and just literally scraped all the skin and dug into my arm. I have scars here on my arm and my back from it (indicating). So not only did the tubing fall on me but the rack itself and the rack is what did an awful lot of damage, out damage to my body because I got scars here where it dug into me (indicating).
Q. So the rack actually tipped over?
A. The rack tipped over.
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Q. And so you also couldn't see how many tubes were strewn on the ground, and so forth, correct?
A. That's correct. It had to be the whole rack to have knocked me down and to have pushed me underneath that truck, because the truck was at least ten feet away, and I ended up under the truck from the force of it.
In addition to this deposition testimony, Plaintiff also submits a sworn affidavit regarding his observations of the storage rack before, during and after the accident:
The rack had approximately six (6) levels of support arms on which the tubing was to be stacked. The support arms were made of either metal rods or metal tubing. I placed the various diameters of tubing on the various support arms and turned my back to the rack. When I was 4 or 5 feet away from the rack, with my back to the rack, the rack tipped over and one of the metal support arms struck me on my left upper back/left shoulder, dug into my left upper back, left shoulder, and left arm, and threw me to the floor.
I have been a weight-lifter all my life and am familiar with weights and forces. I also had extensive experience handling, lifting, and carrying the tubing that I was placing on the rack. The force and weight of what hit me was such that I know it was the rack — it could not have only been the metal tubing. Had the metal tubing fallen off the rack and hit me, it would not have had the weight or the force to have dug into my back, shoulder and arm nor would it have had the weight or the force to have thrown me to the ground.
Further, I know that the rack tipped over because of the distance I was from the rack when it hit me and threw me to the ground. Had the metal tubing rolled off the support arms, they would have cascaded downward like a waterfall. They would not have flown horizontally across the room, five or six feet above the ground, and struck me in by upper back and shoulder. Nor would the tubing have had the force necessary to push me to the ground. On the other hand, the rack tipping over would have reached me, where I stood, and would have had the force to have knocked me to the ground.
Based on this evidence, the Court is persuaded that Plaintiff should be able to testify that the storage rack tipped over and fell onto him. Although Rule 602 provides that a witness' testimony must be based on personal knowledge, it "does not require that the witness' knowledge be positive or rise to the level of absolute certainty. Evidence is inadmissible . . . only if in the proper exercise of the trial court's discretion it finds that the witness could not have actually perceived or observed that [to] which he testifies."
United States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997).
Although the facts presented by Defendant arguably raise some questions about Plaintiff's credibility, the Court finds they do not render him incompetent to testify about whether the storage rack fell on him. Disputed issues regarding the witness' perception go to the weight of the evidence and not to admissibility. Simply put, the Court finds from the evidence submitted that Plaintiff could have perceived or observed the storage rack fall. Thus, Plaintiff satisfies the personal knowledge requirement within Rule 602.
Even if Plaintiff had not submitted evidence sufficient to satisfy the Rule 602 personal knowledge requirement, the Court is persuaded by Plaintiff's argument that the testimony also is admissible as the opinion testimony of a layperson under Rule 701 of the Federal Rules of Evidence, which provides:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
B. Hearsay
Plaintiff does not dispute that any testimony by him as to statements allegedly made by Bryan Barthol (owner of Defendant Prairie Center Muffler) to Plaintiff's supervisor and co-worker regarding the accident would be inadmissible hearsay. Accordingly, that portion of Defendant's Motion will be granted as unopposed.
C. Remedial Measures
Defendant also seeks to exclude at trial evidence of any remedial measures taken after the accident with respect to placement of the storage rack or changes in company procedures, on grounds that such subsequent remedial measures are inadmissible pursuant to Rule 407 of the Federal Rule of Evidence. To that end, Rule 407 states, in pertinent part:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.
If a factual dispute did not exist regarding whether the storage rack actually fell, the Court might be inclined to grant Defendant's Motion in Limine on this issue. Plaintiff contends, however, the evidence that Defendant bolted the rack to the wall after Plaintiff was injured is not being offered to show that Defendant was negligent; rather, it is being offered to refute Defendant's contention that the rack never tipped over in the first place. For this reason, the evidence falls outside the scope of Rule 407 and is admissible.
For the reasons stated above, Defendant's request to exclude evidence is
(1) granted with respect to testimony by Plaintiff as to statements allegedly made by Bryan Barthol (owner of Defendant Prairie Center Muffler) to Plaintiff's supervisor and co-worker regarding the accident; and
(2) denied in all other respects.
IT IS SO ORDERED.