WRIGHT (CONNIE) VS. JAMES A. BROWN ENTERPRISES, LLC. D/B/A RAMADA INN, ET AL.

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RENDERED: JANUARY 24, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2012-CA-001533-MR CONNIE WRIGHT v. APPELLANT APPEAL FROM JOHNSON CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 11-CI-00299 JAMES A. BROWN ENTERPRISES, LLC d/b/a RAMADA INN; and KACo APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: MOORE, NICKELL, AND STUMBO, JUDGES. MOORE, JUDGE: On June 15, 2010, Connie Wright was attending the second day of a teachers conference at a Ramada Inn located in Paintsville, Kentucky. As she was leaving the Ramada Inn for her lunch break, she fell while descending a short flight of stairs in the lobby, and she consequently injured herself. Thereafter, Connie filed a premises liability negligence action in Johnson Circuit Court against the entity that owned and operated the Paintsville Ramada Inn, appellee James A. Brown Enterprises, LLC (hereinafter, Ramada ).1 This matter proceeded to trial, and a jury subsequently rendered a defense verdict. Connie Wright now appeals the judgment of the Johnson Circuit Court in conformity with the jury s defense verdict. Finding no error, we affirm. Each of Connie s arguments on appeal asserts that the circuit court erred in deciding to exclude certain evidence. We will discuss additional facts as they become relevant to our analysis of those arguments. We review a trial court s ruling as to the admissibility of evidence under an abuse of discretion standard. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). The test for abuse of discretion is whether the trial judge s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Moreover, we will reverse or modify a judgment due to an error in excluding or admitting evidence only upon a finding that the error in question prejudiced the substantial rights of the complaining party. Davidson v. Moore, 340 S.W.2d 227 (Ky. 1960); Kentucky Rules of Civil Procedure (CR) 61.01. ANALYSIS 1 KACo is also listed in the caption as an appellee, but it has filed no brief in this matter. At all relevant times, KACo was the workers compensation insurance provider for Connie s employer, LKLP Making Headstart. KACo intervened as a plaintiff during the circuit court proceedings to recoup the amount of workers compensation payments that it had made to Connie as a result of her injuries from any judgment that might have been entered against Ramada. See Kentucky Revised Statute (KRS) 342.700. -2- 1. Exclusion of Emergency Room record Connie argues that the circuit court erred in precluding her from introducing the following statement into evidence: FELL DOWN TWO STEPS. This statement was written in a one-page document purporting to be a memorandum of Connie s visit to the Paul B. Hall Regional Medical Center emergency room on June 15, 2010, shortly after she sustained her injuries. In her brief, Connie explains why this statement was relevant, why she sought to introduce it into evidence, and why the circuit court ultimately decided to exclude it: The central issue in the trial of this action was whether Connie fell from the second step on these stairs as she had demonstrated for her architectural expert, Michael Johnstone, or whether she actually fell from the last step on the stairs, or at the bottom of the stairs, as was claimed by Ramada Inn. Connie had demonstrated for her expert that she was in the process of stepping onto the second step from the top when her feet went out from under her and she fell. She told the Emergency Room personnel that she fell down two steps. Two steps from the bottom is the identical step as the second step from the top (see the various evidence photos of the stairs), so what she said in the ER is the same thing she told her expert. In between going to the ER immediately after the fall, and her statement to her expert at the scene in December of 2010, she made statements inconsistent with this scenario to an agent for Ramada Inn.[2] While she maintained that the reason for these inconsistencies was 2 Following her demonstration for Johnstone, Connie also testified in her deposition that she did not know which step had caused her to fall, or the specifics of how her fall had occurred. Ramada used this to impeach Connie s testimony as well. -3- that it was because she didn t know how or why she had fallen at that point, was working through different possibilities in her mind, and these supposed inconsistencies were nothing more than her honest expression of some of the different possibilities she had been considering. At the time she spoke the [sic] Ramada Inn s agent, she didn t have any knowledge of the flaws in the steps that were later revealed by her architectural expert.[3] After those were revealed to her, the discovery of these flaws made it clear to her as to why she had fallen. Ramada Inn s attorney interpreted the inconsistencies differently. As was brought out by him during his initial cross-examination, [Connie] told Ramada Inn s agent a week after the fall that she fell from the last step rather than the second one (although she also stated that she didn t know how she had fallen in the same statement). During his cross-examination, on numerous occasions, by using these inconsistent statements, Ramada Inn s attorney either directly asked her she [sic] if she changed her version to fit her expert s finding, or strongly implied that this is what she did. The bottom line is that during his cross examination, Ramada Inn s attorney skillfully used these inconsistent statements to suggest to the jury that Connie had never said that she fell from the second step before she met with her expert, and that she thereafter changed her story to state that she fell from the second step only because of what she learned from her expert. Upon redirect, Connie s attorney presented her with the ER record that contained the history that she had provided the ER personnel, i.e., that she fell down two steps , and started to lay the foundation for her to read this prior consistent statement to the jury. We only got so far as presenting the document to her and asking her to read what it indicated at the top (i.e., that it was her ER record and the date of the record), before Ramada Inn s attorney objected. In the bench conference, we stated that it was her ER record, that it contained the history of 3 As indicated, and as discussed infra, the flaw discovered by Johnstone dealt primarily with the second step. -4- what she told the ER personnel, specifically that it said that she fell down two steps , and that it was our intent to use it as a prior consistent statement in rebuttal of the prior inconsistent statements used by Ramada Inn to impeach her. The judge asked what the foundation of the record was, Connie s counsel answered that he was getting ready to lay the foundation, at which time Ramada Inn s attorney interjected that it was a medical record. We responded that yes, it was a medical record but that it also contained [Connie s] history given to the medical personnel, and without further discussion, the trial judge sustained the objection and suppressed the record. Connie s recital of this issue, which is borne out by the trial record, indicates that the legal principles that factored into the circuit court s decision to exclude this statement from evidence were the rule against hearsay and the rules for authenticating admissible hearsay. As a general matter, hearsay is defined as an out of court statement offered in evidence to prove the truth of the matter asserted. Kentucky Rules of Evidence (KRE) 801(c). Hearsay statements are inadmissible as evidence, but may be admissible if an appropriate exception is provided for by the Kentucky Rules of Evidence, or by rule of the Kentucky Supreme Court. KRE 802. In this vein, medical records from hospitals (such as Connie s ER documentation) are considered a species of hearsay, but they are admissible evidence if they are capable of satisfying the authentication requirements of the records of regularly conducted activity exception provided in KRE 803(6). James v. Commonwealth, 360 S.W.3d 189, 202 (Ky. 2012). To do so, a foundation must be established for the record in question, which normally consists of testimony from a custodian of the record or other qualified witness to -5- the effect that: (1) it was the regular practice of the hospital to cause the record to be produced; (2) the record was made at or near the time of the acts, events, conditions, opinions, or diagnoses it describes; (3) by a person with knowledge; and (4) it was kept as a record in the course of the regular conduct of the business of the hospital.4 As a caveat, KRE 803(6) satisfies the hearsay aspects of the record itself and of matters the maker of the record had personal knowledge. James, 360 S.W.3d at 202. If a particular entry or statement in the record would be inadmissible for another reason, it does not become admissible simply because it is included in the record. Prater v. Cabinet for Human Resources, 954 S.W.2d 954, 958 (Ky. 1997). Thus, hearsay statements included within records are only excluded from the general rule against hearsay when the record itself satisfies KRE 4 The relevant part of KRE 803(6), summarized above, is as follows: Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Moreover, KRE 803(6)(A) specifies alternate methods of establishing a foundation for this type of hearsay: A custodian or other qualified witness, as required above, is unnecessary when the evidence offered under this provision consists of medical charts or records of a hospital that has elected to proceed under the provisions of KRS 422.300 to 422.330, business records which satisfy the requirements of KRE 902(11), or some other record which is subject to a statutory exemption from normal foundation requirements. -6- 803(6), and when the additional hearsay statement included in that record meets some other hearsay exception. See KRE 805 ( Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. ). In the context of medical records, for example, the rule against hearsay would not prohibit a hearsay statement made for the purpose of medical treatment (which would be excluded per KRE 803(4)5), memorialized in a medical record satisfying the criteria of KRE 803(6)). See, e.g., Mary Breckinridge Healthcare, Inc. v. Eldridge, 275 S.W.3d 739, 743-44 (Ky. App. 2008). Similarly, the rule would not prohibit prior statements consistent with a declarant s testimony where the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive (which would be excluded per KRE 801A(a)(2)6), and where the statement at issue is likewise memorialized in a medical record satisfying the criteria of KRE 803(6)). See, e.g., Watkins v. Commonwealth, 2009 WL 4251785 at * (2008 SC 000177 MR) (Ky. Nov. 25, 2009).7 5 KRE 803(4) exempts from the rule against hearsay Statements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis. 6 As indicated, KRE 801A(a)(2) provides that a statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is . . . [c]onsistent with the declarant s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. 7 We cite Watkins for illustrative purposes only and do not imply that it satisfies the requirements of (CR) 76.28(4)(c). -7- Here, Connie argues that her statement that she FELL DOWN TWO STEPS, as recited in her purported ER documentation, should not have been excluded from evidence because the statement itself qualified as either non-hearsay rehabilitation evidence,8 or substantive hearsay evidence excepted by KRE 801A(a)(2) or KRE 803(4). Connie s argument misses the point though. It was not this statement in this medical record that the circuit court deemed inadmissible. It was the medical record itself: The circuit court excluded this evidence because Connie s ER documentation constituted a separate layer of hearsay; Connie failed to address the hearsay aspects of this ER documentation by laying a foundation and authenticating it per KRE 803(6);9 and, without doing so, her ER documentation and any statement contained therein was inadmissible. In short, because Connie did not properly authenticate this medical record, the circuit court did not err in excluding it along with any statement within it. 2. Exclusion of page 24, line 22, through page 27, line 7, of Michael Johnstone s deposition testimony As Connie indicated above, a central issue in this matter was whether she fell from the second descending step in Ramada Inn s lobby stairs. This is 8 In Murray v. Commonwealth, 399 S.W.3d 398, 404 n. 8 (Ky. 2013), the Kentucky Supreme Court recently explained that a prior consistent statement used solely for rehabilitative purposes is not admitted under KRE 801A(a)(2) because KRE 801(A)(a)(2) does not even address the scenario but, rather, is admitted as non-hearsay offered not for the truth of the matter asserted. (Citing James v. Commonwealth, 360 S.W.3d 189, 206 (Ky. 2012)). 9 As noted above, Connie indicates that her counsel was getting ready to lay the foundation for this evidence. To be clear, her counsel merely attempted to lay the foundation by having Connie testify that the medical record was what it purported to be. This would have been inappropriate; Connie was incapable of authenticating this record because she was neither the custodian of the hospital s records, nor any other qualified witness within the meaning of KRE 803(6). -8- because Michael Johnstone, Connie s forensic architect expert witness, only found that this second descending step, rather than any other step, constituted a hazardous condition in the context of Connie s fall. There are three steps between the bottom level and the top level of this part of the Ramada Inn lobby. There is a height difference of five and one-half inches between the top level of the Ramada Inn lobby and the first descending step. Afterwards, there is a height difference of six inches between the first descending step and the second descending step; a height difference of six inches between the second descending step and third descending step; and, a height difference of six inches between the third descending step and the bottom level. Johnstone testified that acceptable architectural standards and applicable building codes only allow for a maximum variance of 3/16ths of an inch between steps. And, Johnstone further testified that the ½ inch difference in uniformity between the first and second of Ramada s lobby steps constituted a hazardous condition because: When descending a stair there s a timing from one step to the next of when your foot s going to strike, that depends on the height of the riser.[10] So if the riser s taller, it takes more time for you to meet the next step. So if you move on to one beyond that, that has a different riser dimension, it interrupts the rhythm that you learn from the first step you took. .... I think we ve all experienced that situation where you re going down steps and you think there s one more, or you go down and you think you re at the bottom and suddenly you re jarred. That causes you to disturb your rhythm and lose your balance. 10 Johnstone used the word riser as a synonym for step. -9- Johnstone did not appear at the trial of this matter, but Connie presented much of his deposition as evidence in her case-in-chief. With this in mind, Connie argues that the circuit court erred by excluding from evidence Johnstone s testimony as it appears between page 24, line 22, and page 27, line 7, of his deposition. In sum, this testimony largely explains why Johnstone believed Connie fell from the second descending step: Q: I m going to show you a record, the record that has the history that she received from the ask you if that s the record from Paul B. Hall that you re referring to? JOHNSTONE: Yes, that s it. Q: Can you read what it says in regards to what she told the emergency room personnel about what she did? JOHNSTONE: Says patient fell from standing position after tripping, period. Patient did not sustain loss of consciousness. Then in capital letters FELL DOWN TWO STEPS. Q: That s the statement you re talking about that corroborates her location at the time she fell, as to as far as what she told you? JOHNSTONE: Yes, sir. Q: I d ask this be made Exhibit No. 6 to the deposition. Have you seen Connie s deposition and the statement that she gave to an agent for Ramada Inn? JOHNSTONE: Yes, sir. Q: She does state in the deposition and in the statement to the agent to Ramada Inn, some different theories about what caused her to fall; does she not? -10- JOHNSTONE: Yes. Q: What is different about those statements in terms of the timing of the statements and the circumstances surrounding her giving those statements, from the statements that you took and the statements she gave to the emergency room personnel at Paul B. Hall? JOHNSTONE: The ones to the emergency room would be the freshest in her mind because it occurred just moments before. The other ones would be her recalling what took place and coming up with the theory of how the accident happened. And the third would be when she was with me standing on the stairs and trying to reconstruct what took place. Q: When she gave the other statements, like the deposition, the statement to the agent for Ramada Inn, she was not present at the Ramada Inn at the time she gave those statements, was she? JOHNSTONE: No. Q: And those were many days, and in regard to the deposition years after the incident? JOHNSTONE: Yes. Q: She wasn t again present at the scene, so she was relying strictly on what she could recall at the time she gave those statements, in regard to what she said then? JOHNSTONE: Yes, sir. Q: Was she also telling them at the same time she was coming up with these different theories, that she did not remember what happened? JOHNSTONE: She was saying from the time her feet started to slip, until she had landed, that she doesn t remember what took place. Q: And that she didn t know why she fell? -11- JOHNSTONE: Correct. Prior to trial, Ramada raised two objections to this portion of Johnstone s deposition. Its first objection was that inasmuch as Johnstone s testimony recites and describes the substance of Connie s purported ER documentation from Paul B. Hall Regional Medical Center, Connie failed to establish the authenticity of the ER documentation or establish a foundation for it. Ramada s second objection was that the sum of the above testimony constituted impermissible vouching or bolstering of certain portions of Connie s testimony. As to the first of these objections, we have already determined that the circuit court committed no error in excluding Connie s ER documentation on the grounds of lack of authentication and foundation. Thus, for the same reasons stated previously, we find that the circuit court committed no error in excluding Johnstone s testimony as it appears above; it essentially served as a vehicle for relating the substance of otherwise inadmissible evidence. As an aside, Connie points out that Johnstone testified as her expert, relied upon her purported ER documentation in forming his expert opinions, and that KRE 703(b)11 permitted the 11 In total, KRE 703 provides: (a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (b) If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to subdivision (a) may at the discretion of the court be disclosed to the jury even though such facts or data are not admissible in evidence. Upon request the court shall admonish the jury to use such facts or data only for the purpose of -12- circuit court to disclose her purported ER documentation to the jury. However, KRE 703(b) is permissive and discretionary; nothing obligated the circuit court to disclose this otherwise inadmissible evidence to the jury; and, Connie makes no argument that the circuit court s refusal to do so constituted an abuse of its discretion. As to the second of these objections, we agree that the remainder of Johnstone s testimony, as it appears above, is nothing more than Johnstone s personal assessments of Connie s credibility and truthfulness. Generally, a witness may not vouch for the truthfulness of another witness. Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky. 1997). Such testimony remove[s] the jury from its historic function of assessing credibility. Newkirk v. Commonwealth, 937 S.W.2d 690, 696 (Ky. 1996). As it is improper for a witness to vouch for the credibility of the out-of-court statements of another, so it is improper to vouch for another witness s testimony at trial, Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky. 1993), and vouching for the truth of such statements, even by an expert, is impermissible. Hellstrom v. Commonwealth, 825 S.W.2d 612, 614 (Ky. 1992). Thus, we find no error in the circuit court s decision to exclude the above portion of Johnstone s testimony on this basis, either. evaluating the validity and probative value of the expert's opinion or inference. (c) Nothing in this rule is intended to limit the right of an opposing party to cross-examine an expert witness or to test the basis of an expert's opinion or inference. -13- 3. Exclusion of page 44, lines 13 through 16, of Michael Johnstone s deposition testimony Johnstone also offered an opinion that the difference in uniform step height was not an open and obvious condition. See, e.g., Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 388-95 (Ky. 2010) (describing the impact of the openness or obviousness of a hazardous condition upon a premises owner s liability in this context). Connie argues that the circuit court erred in excluding a portion of this opinion testimony, which was located specifically on page 44, line 13 through 16, of Johnstone s deposition. We have italicized the excluded testimony below: JOHNSTONE: This is a page from Architectural Graphic Standards, which is a document produced by the American Institute of Architects, and it specifically states the maximum variation on riser or tread height or width. Q: And what does it state? JOHNSTONE: Cannot exceed 3/16th of an inch. Q: We ll make that one Exhibit No. 9A to the deposition. These defects that we ve been talking about here, code violations, are these something that ordinary people using this building would be likely to observe and perceive as to have been dangerous? JOHNSTONE: No. Q: Why is that? JOHNSTONE: I think it takes training and education on building codes and construction to be able to notice something like that. Q: This isn t an open and obvious danger, is it? -14- JOHNSTONE: No, sir. Q: It s more of a subtle and hidden danger? JOHNSTONE: Yes, sir. Q: To get an idea of the opposite, if we had the opposite setup, just take this as a hypothesis for a minute. If we had the opposite setup and problem with these stair risers where the top step was actually the tallest step, and there s a half-inch variance going up where the top one was taller. I m sure people are familiar with that, when they re going up steps there s a taller step as they go up it. Would that be a hidden danger or would that be something that people would figure out pretty quickly? JOHNSTONE: That would be a hidden danger as well. We have included the additional testimony immediately preceding and following this italicized testimony because it demonstrates that even if the circuit court s decision to exclude page 44, line 13 through 16, of Johnstone s deposition from evidence was error, it was at best harmless error: the non-italicized testimony, which was presented to the jury in this matter, effectively conveyed Johnstone s opinion and belief that the condition of the stairs was hazardous and was also a hidden danger that would only be recognized by someone with training and education on building codes and construction, as opposed to ordinary people using this building. We see no difference between the substance of this testimony and the substance of the excluded testimony because both convey Johnstone s opinion that the stairs did not constitute an open and obvious hazard. 4. Exclusion of page 51, lines 13 through 17, of Michael Johnstone s deposition testimony -15- Next, Connie argues that the circuit court erred in excluding another portion of Johnstone s deposition testimony, appearing on page 51, lines 13 through 17. As before, we have italicized this testimony and have added his testimony immediately preceding and following it for context: JOHNSTONE: The riser and the treads are all monochromatic, they re all the same color. It s hard to see the edge of the stair because it blends in with the front of the stair so they all look the same. And the glazed tile can be, by itself, a problem. And if it ever gets wet, then it becomes definitely a problem. Q: In this particular instance we don t know whether she slipped or just missed the step, or lost her balance or what, though, do we? JOHNSTONE: No, we don t. Q: Would Connie, when she talked about and was trying to figure out why she fell, would she have known about these defects that you found on your investigation? JOHNSTONE: I don t believe so, no. Q: And you stated earlier that an ordinary person, these aren t things that they would observe as being a dangerous problem? A: That s correct. In her brief, Connie explains that as an ordinary person without technical training in construction or building codes, [she] would not be expected to recognize the dangers presented by these code violations. Therefore, she reasons -16- that Johnstone s above italicized testimony was relevant and should not have been excluded. But, to the extent that this excluded testimony does stand for that proposition, the above excerpt demonstrates that it was merely duplicative of the other testimony to the same effect which the circuit court did admit. At most, the only difference between this excluded testimony and the admitted testimony surrounding it is that this excluded testimony adds Johnstone s speculation and belief about what Connie perceived at the time of her fall, i.e., that at the time of her fall Connie would not have known about any danger presented by the condition of the stairs. And, speculation and belief is not evidence in any event. See, e.g., O Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) ( [S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation. (Citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)); Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990) ( Belief is not evidence and does not create an issue of material fact. ). In short, this is also no ground for reversible error. 5. Excluded portions of Dr. Robert Hoskins s deposition testimony Connie also introduced the deposition testimony of Dr. Robert Hoskins, who testified as her expert witness on the issue of damages. The circuit court excluded certain portions of his deposition testimony from evidence and Connie argues that it was error for the circuit court to do so. Whether it was or was -17- not is a moot point, however. Dr. Hoskins s testimony only concerned the matter of Connie s damages, and the jury s verdict in favor of Ramada was not based upon damages; rather, it was based upon a finding that Connie s injuries were not the proximate result of a breach of any duty Ramada owed to Connie. Therefore, we need not address this point. CONCLUSION We have addressed the balance of the arguments Connie has raised in her appeal, and we have determined that no reversible error occurred. Accordingly, the Judgment of the Johnson Circuit Court is affirmed. ALL CONCUR. BRIEF AND ORAL ARGUMENT FOR APPELLANT: Warren A. Taylor Hazard, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE, JAMES A. BROWN ENTERPRISES, LLC d/b/a RAMADA INN : James G. Womack Lexington, Kentucky -18-

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