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Walker v. DDR Corp.

United States District Court, D. South Carolina, Columbia Division

January 25, 2019

Sharon Walker, Plaintiff,
v.
DDR Corp., BRE DDR Harbison Court LLC, Joe Doe No. 1, John Doe No. 2, John Doe Company No. 1, Joe Doe Company No. 2, Joe Doe Company No. 3, Defendants. BRE DDR Harbison Court LLC,
v.
Coffelt Consolidated Holdings Inc., d/b/a Elite Sweeping Service,

          ORDER

         This matter is before the court for review of DDR Corp. and BRE DDR Harbison Court LLC's (collectively, “Defendants”) Motion in Limine to Exclude Certain Post-Incident Materials (ECF No. 66). Defendants' Motion was filed on August 31, 2018, and Plaintiff Sharon Walker (“Plaintiff”) responded in opposition on September 11, 2018. (ECF Nos. 66, 70.) For the reasons stated herein, the court GRANTS IN PART and DENIES IN PART Defendants' Motion in Limine to Exclude Certain Post-Incident Materials (ECF No. 63).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On June 19, 2014, Plaintiff used a parking lot, owned, maintained, and managed by Defendants, in Columbia, South Carolina. (ECF No. 1-2 at 4 ¶ 10.) While using the parking lot, Plaintiff allegedly stepped into a hole between a water meter lid and the parking lot's surface. (Id.) Plaintiff maintains that she “fell violently to the ground and sustained serious injuries to her right knee.” (Id. at 4 ¶ 11.) As a result of the purported accident, DDR property manager Lisa Nesbitt (“Nesbitt”) prepared an incident report and e-mailed Greg Coffelt, the principal of the third-party Defendant. (ECF No. 66-1 at 2; ECF No. 66-4 at 1.) The parking lot was repaved after Plaintiff's accident, but before she filed the instant lawsuit. (ECF Nos. 43, 55.) After Plaintiff initially filed her Complaint in the Richland County Court of Common Pleas on May 9, 2017, Defendants removed the case to the United States District Court for the District of South Carolina on June 16, 2017. (ECF Nos. 1, 1-1.) Plaintiff's action is brought under the South Carolina laws of negligence. (ECF No. 1-1.)

         On August 31, 2018, Defendants filed a Motion in Limine to Exclude Certain Post-Incident Materials. (ECF No. 66.) First, Defendants argue that Nesbitt's incident report should be excluded because it is unfairly prejudicial under Rule 403 of the Federal Rules of Evidence (“the Rules”) and contains hearsay for which there is no exception under the Rules. (Id. at 2-3.) Specifically, Defendants claim that a narrative portion of the incident report are the words of a Fast Signs manager, not those of Nesbitt, and, therefore, that portion of the incident report is inadmissible hearsay. (Id. at 3; ECF No. 66-1 at 1-3.) The narrative section at issue states: “claimaint [sic] was leaving tenant space, her car was shadowing a water meter cover that was not even and she tripped on it and fell.” (ECF No. 66-3 at 1.) Secondly, Defendants maintain that an e-mail from Nesbitt to Coffelt is unfairly prejudicial under Rule 403 because it confuses the issues and may mislead the jury. (ECF No. 66 at 3-4.) Nesbitt's e-mail states:

“Do you recall a woman was leaving Battery's Plus, her car basically cast a shadow over the parking lot where an uneven drain cap was and she tripped and fell? I THINK I asked Choate to run over and put a cone on it and MAYBE we had WW fix the drain and then we did the asphalt.”

(ECF No. 66-4 at 1.) Based upon the Rules, Defendants request the court to exclude the incident report and the e-mail between Nesbitt and Coffelt. (ECF No. 66 at 4.)

         Plaintiff filed a Memorandum of Law in Opposition to Defendants' Motion on September 11, 2018. (ECF No. 70.) Plaintiff first argues that the incident report is admissible under Rule 801(d)(2)(d) and Rule 803(6) of the Rules because the report qualifies as an admission by the opposing party and is a business record. (Id. at 3-6.) As it relates to Nesbitt's e-mail, Plaintiff likewise submits that it is admissible under Rule 801(d)(2)(d) and Rule 803(6) because it also qualifies as an admission and a business record. (Id. at 7-8.) Premised upon the aforementioned evidentiary theories, Plaintiff requests the court to deny Defendants' Motion. (Id. at 8.)

         The court heard oral arguments from Plaintiff and Defendants on December 5, 2018. (ECF No. 90.) During the hearing, Defendants continued to argue for the exclusion of “certain post-incident materials, ” while Plaintiff maintained that the incident report and e-mail were admissible under the Rules. (Id.) This issue has been extensively briefed by the parties and is now ready for the court's review. See Walker v. DDR Corp., C/A No. 3:17-cv-01586-JMC, 2019 WL 142303, at *2 (D.S.C. Jan. 9, 2019) (citations omitted).

         II. LEGAL STANDARD

         “Questions of trial management are quintessentially the province of the district courts.” United States v. Smith, 452 F.3d 323, 332 (4th Cir. 2006). “The purpose of a motion in limine is to allow a court to rule on evidentiary issues in advance of trial in order to avoid delay, ensure an even-handed and expeditious trial, and focus the issues the jury will consider.” United States v. Verges, No. 1:13cr222 (JCC), 2014 WL 559573, at *2 (E.D. Va. Feb. 12, 2014). When ruling upon a motion in limine, a federal district court exercises “wide discretion.” United States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (quoting United States v. Heyward, 729 F.2d 297, 301 n.2 (4th Cir. 1984)). Nevertheless, a motion in limine “should be granted only when the evidence is clearly inadmissible on all potential grounds.” Verges, 2014 WL 559573, at *3. See also Fulton v. Nisbet, C/A No. 2:15-4355-RMG, 2018 WL 565265, at *1 (D.S.C. Jan. 25, 2018).

         III. DISCUSSION

         A. The Admissibility of Nesbitt's Incident Report

         Defendants seek to exclude the narrative portion of the incident report which states the following: “claimaint [sic] was leaving tenant space, her car was shadowing a water meter cover that was not even and she tripped on it and fell.” (ECF No. 66-3 at 1.) Defendants argue that the statement contains multiple layers of hearsay because Nesbitt received the narrative from a Fast Signs manager, an employee of the tenant occupying the premises of the accident. (ECF No. 66 at 2-3.) Defendants also maintain that the incident report is unfairly prejudicial. (Id. at 2.) During the hearing, Defendants requested the court, at a minimum, to redact the narrative section of the incident report. Plaintiff, on the other hand, submits that Nesbitt wrote the narrative within the scope of her employment and “adopted or believed the statement to be true . . . .” (ECF No. 70 at 5.) In addition, Plaintiff maintains that the incident report is an admission by a party opponent and, therefore, not hearsay. (Id. at 4.)

         Generally, under the Federal Rules of Evidence, hearsay is inadmissible. Fed.R.Evid. 802. However, Rule 803(6) provides that a “record of an act, event, [or] condition” is admissible when certain conditions are met. See Fed. R. Evid 803(6). Defendants concede that the incident report itself is admissible as a business record under Rule 803(6), but contest the narrative portion because it came from the Fast Signs manager and, therefore, constitutes hearsay. (See ECF No. 66 at 3.) Defendants' argument prevails for several reasons. “‘Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c) (emphasis added). In addition, “[h]earsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to rule.” Fed.R.Evid. 805. During her deposition, Nesbitt opined that the narrative portion of the incident report “came from the [Fast Signs] manager.” (See ECF No. 66-1 at ...


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