Unpublished Disposition, 931 F.2d 59 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 931 F.2d 59 (9th Cir. 1991)

Pauline ALBERT, Plaintiff-Appellant,v.UNITED AIR LINES, INC., Defendant-Appellee.

No. 89-55848.

United States Court of Appeals, Ninth Circuit.

Submitted April 1, 1991.* Decided April 22, 1991.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.


MEMORANDUM** 

Pauline Albert was injured when she fell from a United Airlines ("United") passenger stand. At trial, she claimed the fall was the result of United's negligence because (1) the bottom two steps of the passenger stand were not protected by a handrail, and (2) no representative of United was stationed at the bottom of the stand to assist deplaning passengers. The jury returned a verdict for United.

On appeal, Albert claims the district court erred in failing to instruct the jury on the theory of res ipsa loquitur, and in excluding certain testimony. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* Res Ipsa Loquitur

Mrs. Albert claims the jury should have been instructed on the theory of res ipsa loquitur. This claim is without merit.

Whether res ipsa loquitur applies to a given set of facts is a question of law we review de novo. Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437 (9th Cir. 1983). "Whether or not the facts necessary to establish the elements of the doctrine are present, on the other hand, is a question of fact." Id. at 1438.

Three conditions must be met for the res ipsa loquitur doctrine to apply: "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." Newing v. Cheatham, 15 Cal. 3d 351, 359 (1975) (quoting Ybarra v. Spangard, 25 Cal. 2d 486, 489 (1944)).

Mrs. Albert's fall down the passenger stand is not the type of accident that would not ordinarily occur without someone's negligence. See Gray v. City and County of San Francisco, 202 Cal. App. 2d 319, 325 (1962) ("Common experience shows that people are likely to fall while boarding or alighting from streetcars, buses and other types of transportation without negligence on the part of anyone unless perhaps the passenger himself."). The district court correctly refused to give the res ipsa loquitur instruction.

II

Excluded Testimony

Mrs. Albert claims the district court erred in excluding the testimony of three witnesses. This claim is also meritless.

* Mrs. Billips

Mrs. Billips planned to testify as an expert about current airline industry practices, although she had not been involved with the airline industry since 1983.

"A trial court has broad discretion in admitting and excluding expert testimony and its decisions will not be reversed unless 'manifestly erroneous.' Thus, its evidentiary rulings are reviewed for abuse of discretion." Davis v. Mason County, Nos. 88-3947, 88-4394, 88-3951, slip op. 2599, 2616 (9th Cir. March 12, 1991) (citations omitted).

The district court did not abuse its discretion in concluding that Mrs. Billips, who had not worked in the airline industry since 1983, did not have a reliable basis to testify on current industry practices.

B

Mr. Stephenson

Mr. Stephenson was working in the United Airlines baggage room on the day Mrs. Albert fell. Stephenson planned to testify that he had spoken with an unidentified passenger who said that he had fallen down the stairs. Another airline official had already provided testimony about the passenger's alleged fall.

The district court's decision to exclude testimony is reviewed for an abuse of discretion. Kunz v. Utah Power & Light Co., 913 F.2d 599, 603 (9th Cir. 1990). We conclude the court did not abuse its discretion in excluding Stephenson's testimony as cumulative and irrelevant.

C

Dr. Dodge

Dr. Dodge planned to offer a diagnosis of Mrs. Albert's physical condition based on medical records from Kona Hospital. Initially, the district court was concerned that the records may not have been authentic, and that Mrs. Albert's counsel may have "actively prevented [United's] counsel from obtaining copies of [the] records." Eventually, however, the court gave Mrs. Albert the opportunity to offer Dr. Dodge's testimony.

Mrs. Albert did not offer the testimony, reasoning that medical evidence would not be necessary because United did not intend to contest the fact or extent of Mrs. Albert's injuries. She now claims the initial exclusion was erroneous. Further, she argues she was precluded from offering the testimony later in the trial because the "damage was done" by the earlier exclusion. This argument has no merit.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3