886 F.2d 14
28 Fed. R. Evid. Serv. 823
v.
BUSCH ENTERTAINMENT CORPORATION, d/b/a Busch Gardens,
The Old Country, Defendant-Appellee
No. 138, Docket 89-7378.
United States Court of Appeals, Second Circuit.
Argued Sept. 13, 1989.Decided Sept. 15, 1989
Summary
On August 23, 1986, Willie Mae Gray and her two daughters went to Busch Gardens, an entertainment park in Williamsburg. She boarded a small train and tumbled off and harmed herself. Busch Gardens representatives dispatched a medical aid group to the site and called an emergency to evacuate her for medical attention. One of Plaintiff's Daughters accompanied her to the hospital while the other went to record the incident with the nurse. The records made by the nurse and Esther contained another version of how the incident happened. Following the occurrence, Gray initiates a lawsuit seeking compensation for her injuries. At trial, her variant of the event was that she had slipped on "something" before sitting down. The defense hypothesis was that Mrs. Gray had stood up to take a photo and had stepped back outside the carrier. They provided an eyewitness to the incident. The defense further sought to introduce a portion of the record done by the Nurse and Esther. The appellate judge allowed the introduction of the document that described Gray’s incident at least according to Esther. The District Court that had handled the case before the appeal had granted Gray damages. The Appellate jury found that the offended party's carelessness was the proximate reason for her Injury. Appellant claims, contending that the trial judge made three blunders of law.
During the hearing, Esther, argues that the supportive document allowed by the appeal court was factually inconsistent with what she recorded. She had categorically denied giving a report concerning her mother’s incident. The challenged part of the report was, however, admissible.
Facts relevant to the appellate court
Willie Mae Gray, the appellant in the case, accompanied by her daughters Visited Busch Gardens (amusement park) in Williamsburg for entertainment.
While at Busch Garden, Gray boarded a small train from which she fell off and injured herself.
She was attended to by the park first aid team, and the ambulance was called in to take her for treatment. One of her daughters accompanied her to the hospital.
Another of Gray’s daughters, Ruth accompanies the Park nurse to fill some paperwork. The nurse ant Ruth writes an incident report with an explanation of circumstances surrounding Gray’s event.
The issue
Was the trial Judge correct in granting the plaintiff damages without allowing the statement of reason that resulted from a voir dire concerning the first aid report?
The decision
The Jurists found that Gray Negligence was the proximate cause of the injury the failure to allow the statement of reason preserved the hearsay while the objection was on any ground relevant to the case. After interrogation of the case and circumstances surrounding Gay’s injury, the Jury gave a verdict; “The failure to request a limiting instruction, the Jury believes, waived any claim short of outright inadmissibility.”
The failure to call for a limiting instruction, the Jury reports that they believe, waived any claim short of outright inadmissibility. The case was decided for the appellant and Gray will not receive claim any damages as it had been granted by the ruling judge (Gray v. Busch Entertainment Corporation, 1989).
Reasoning as the jury as per the per curiam
The Appellant had a duty of care for all visitors. The visitors were to be informed of any danger if it existed. If an incident occurred and a visitor suffers an injury, the Appellant would pay the damages as the District Court had ruled it. The appellate court, however, finds that the ruling judge made three mistakes in the process of handling the case.
1. To begin with, appealing party guarantees that it was a mistake to apply Virginia law, under which contributory carelessness is a defense, instead of New York law, which utilizes near carelessness examination. The Jurists opposed this principal as the appellant argued. The decision of applying Virginia law was altogether proper under the "interest investigation" methodology of New York decision of-law principles. Under that examination, when the houses of the gatherings contrast, the area of the where the plaintiff incurred injury decides the representing substantive law truant unique incidence. Refer to Bader v. Purdom, 841 F.2d 38, 40 (2d Cir.1988). Appealing party has not shown any exceptional circumstances that should restrain the application of this principle. She has neither met the heavy burden imposed on a right party intending to refrain from such particular chose of the law by invoking the public policy doctrine. Consistent with Bader by Bader v. Purdom, 841 F.2d 38, 40 (2d Cir.1988), the jury gave a verdict that is factual based and not settles a matter arising from harmonizing statutes from two different states (Bader By Bader v. Purdom, 1998. 2). Appellant has not established any special conditions that necessitate a departure from this rule. Nor has she, by invoking the public policy doctrine, met the "heavy burden" imposed on a party wishing to avoid such a choice of law
2. Appealing party asserts that the judge's prohibition of confirmation about the absence of an alert strip as unimportant was a blunder. The Jurists disagreed with this. Litigant's hypothesis was that she had slipped on something, not that she had misconstrued the area of the edge of the progression. The nonattendance of a yellow alert strip on the brink of the train consequently couldn't have brought about litigant's fall. Her conflict that such a strip would have highlighted the nearness of flotsam and jetsam falls flat in perspective of the absence of any confirmation of the nature, area or shade of that garbage.
3. Litigant asserts that approval of the emergency treatment report was a mistake since its record of Esther's announcements was prattle. The emergency treatment report seems to have been conceded as a business record under Fed.R.Evid. 803(6). Esther, in any case, in conversing with the attendant, was not acting in the logical course of business, and the record of her announcement was consequently forbidden unless it fell inside some special case to the gossip guideline. See Fed.R. Evid. 805. As the Advisory Committee's Note unequivocally states,
Wellsprings of data gave no significant issue normal business records. All members, including the eyewitness or member outfitting the data to be recorded, were acting routinely, under an obligation of exactness, with manager dependence on the outcome, or in short "in the usual course of business." If, be that as it may, the supplier of the data does not act in the consistent course, a crucial connection is broken; the affirmation of exactness does not reach out to the data itself, and the way that it might be recorded with careful precision is of no benefit. There was overwhelming evidence that the injury was self-contributory and do not warranty the plaintiff to claim any damages. The apparent inconsistency in Ruth’s evidence and contends that she was not associated with the first aid report is not a reliable, and the jury concluded that information that was recorded during a routine business activity were repayable as construed by the legal counsel.
Work cited
Bader By Bader v. Purdom, 841 F.2d 38 (2d Cir. 1988).
Gray v. Busch Entertainment Corp., 886 F.2d 14 (2d Cir. 1989).
