BOYD v. MAGIC GOLF, INC.


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Docket Number: 2009-CA-00691-COA

Court of Appeals: Opinion Link
Opinion Date: 01-25-2011
Opinion Author: Judge Irving
Holding: Affirmed.

Additional Case Information: Topic: Personal injury - Premises liability - Breach of duty - Business invitee - Level of supervision - Exclusion of testimony - Personal knowledge - M.R.E. 403 - Admission by party opponent - M.R.E. 801(d)(2) - Statement against interest - M.R.E. 804(b)(3)


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Topic: Personal injury - Premises liability - Breach of duty - Business invitee - Level of supervision - Exclusion of testimony - Personal knowledge - M.R.E. 403 - Admission by party opponent - M.R.E. 801(d)(2) - Statement against interest - M.R.E. 804(b)(3)

Summary of the Facts: During a visit to Slippery Sam’s water park, Samantha Boyd sustained serious injuries to her mouth, including the loss of a tooth and the surrounding bone, while sliding down a water slide. Samantha’s parents, Jeff and Nancy Boyd, brought a premises-liability action against Slippery Sam’s. Slippery Sam’s moved for a directed verdict at the close of the Boyds’ case-in-chief. The court granted the motion, finding that the Boyds had failed to prove the existence of a defect on the slide. The Boyds appeal.

Summary of Opinion Analysis: The Boyds argue that the circuit court erred in directing a verdict in favor of Slippery Sam’s because there was sufficient evidence to show that Slippery Sam’s had breached its duty of supervision by failing to have a lifeguard present at the top of the slide. As a proprietor engaged in providing public amusement, Slippery Sam’s must exercise a reasonable degree of watchfulness to guard against injuries likely to happen in view of the character of the amusement. The Boyds presented no expert testimony regarding the level of supervision required in the water-park industry. Furthermore, they presented no evidence that the standard of care applicable to Slippery Sam’s required the presence of lifeguards at both the top and the bottom of the slides. Slippery Sam’s owed Samantha, a business invitee, a duty to maintain the water park in a reasonably safe condition, to warn of any known dangerous conditions not readily apparent to its patrons, and to conduct reasonable inspections of the premises. However, Slippery Sam’s is not required to insure against all injuries to invitees. The Boyds failed to produce any evidence that Slippery Sam’s negligently maintained its water park. While Jeff and Nancy testified that they observed eroded concrete and missing paint on the slides, their testimonies and photographs related to the conditions at the bottom of the slide, not the middle where Samantha had sustained her injury. The company’s representative testified that cracks would form in the cement slides as a result of exposure to high temperatures and running water. However, the water park repaired cracks at the start of the summer. He further testified that the lifeguards inspected the slides at the end of each shift by sliding down the slide and checking for defects. The Boyds also failed to produce any evidence that Slippery Sam’s failed to warn of known dangerous conditions not readily apparent to its patrons. In fact, the Boyds failed to establish that a dangerous condition existed. There is also no evidence that Slippery Sam’s failed to conduct reasonable inspections of the premises. The circuit court excluded Nancy’s testimony regarding the condition of the slides the day after Samantha’s accident and her discussions with a concession-stand employee regarding the absence of a lifeguard at the top of the slides. The Boyds argue this was error, because Nancy’s observations of the water park the day following the accident were admissible as personal knowledge. Any witness is competent to testify who has evidentiary facts within his personal knowledge, gained through any of his senses. While Nancy certainly had personal knowledge regarding the condition of the slides at the water park, the circuit court limited her testimony because her observations did not occur on the day of the accident. Furthermore, the circuit excluded the evidence pursuant to M.R.E. 403. Nancy’s testimony was inadmissible because it was based on observations made on the day following, not on the day of, the accident. In addition, it was irrelevant and also cumulative and could have been excluded under Rule 403 on that basis. With regard to Nancy’s discussion with an unidentified Slippery Sam’s employee, the Boyds argue that the conversation qualified as an admission by a party opponent under M.R.E. 801(d)(2) and was not hearsay and qualified as an exception to the hearsay rules as a statement against interest. While statements of a party or a party’s agent offered against the party are not hearsay, Rule 801(d)(2)(C) requires that such statements be made by individuals authorized to speak on the subject. Additionally, Rule 801(d)(2)(D) requires that statements made by a party’s employee must be made within the course and scope of the employment relationship. Based on the record, Nancy could not identify the employee she spoke to regarding the presence of lifeguards at the top of the slides. Furthermore, she testified that the employee worked at the concession stand. Not only did the Boyds provide any proof that the employee was authorized to speak on the subject of where lifeguards should or should not be on duty, a statement regarding the presence of lifeguards would not fall within the scope of employment of a concession-stand employee. The Boyds contend that the employee’s statement qualifies as a statement against interest under Rule 804(b)(3). However, this exception requires that the witness be unavailable. There is no evidence in the record that the Boyds attempted to procure the attendance of the employee who made the statement regarding the presence of lifeguards at the slides. In fact, Nancy could not even identify the employee by name. Therefore, the witness was not unavailable, and the exception to the hearsay rule for statements against interest does not apply.


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