Kilgo v. Wal-Mart Stores, Inc.
Kilgo v. Wal-Mart Stores, Inc.
Opinion of the Court
Wal-Mart Stores, Inc. (Wal-Mart) appeals from a judgment entering a jury verdict in the amount of $2,225,000.00 for Louis and Carole Kilgo (the Plaintiffs).
Louis Kilgo (Kilgo), an independent contractor, was injured on 17 January 1991 while opening the rear doors of a trailer (Kilgo trailer) he had transported to a Sam’s Club in Fayetteville, North Carolina (the Sam’s Club) for unloading. Kilgo worked for National Freight, Inc. and he had been dispatched to transport a load of merchandise from a Wal-Mart distribution center to the Sam’s Club, a division of Wal-Mart. The merchandise was packed and loaded by employees of Wal-Mart into the Kilgo trailer. When Kilgo opened the rear left door of the Kilgo trailer, a portion of the cargo fell onto him causing him injury.
The Plaintiffs alleged Wal-Mart was negligent in that Wal-Mart failed to secure the cargo in the Kilgo trailer and the failure to adequately secure the cargo was a proximate cause of his injuries. The Plaintiffs offered the testimony of an eye witness. This witness, Richard West, stated the Kilgo trailer had “no load locks,” “[n]o dun-nage,” “[n]o air bags, [and] no barricade to secure [its] load.”
Troy Seamon, a Wal-Mart employee, testified he worked at a Wal-Mart retail store from July 1992 to February 1995 as a cargo unloader. He was allowed to testify, over Wal-Mart’s objection the evidence was not relevant, that he observed on “[q]uite a few occasions” merchandise falling out of Wal-Mart trailers that had been transported to a Wal-Mart retail store for unloading. He further was allowed to state he had observed “the way [the trailers were] loaded.” The merchandise “was kind of scattered out through the trailer[s]” and “load locks” were not usually used to secure the merchandise.
The Plaintiffs offered into evidence, as their Exhibit #1, a “Report of Customer Incident,” a document prepared by Wal-Mart and relating to the events occurring on 17 January 1991. This exhibit contained answers to thirty form questions, was given to the Plaintiffs by Wal-Mart pursuant to pre-trial discovery, and was identified as a redacted document. On 30 October 1998, the Plaintiffs served a subpoena duces tecum on the current manager of Sam’s Club, Dale Filley (Filley), directing him to produce at trial, on 9 November 1998,
The issues presented are whether: (I) evidence of cargo falling out of Wal-Mart trucks, after the incident causing the Plaintiff’s injuries, is relevant evidence; and (II) the un-redacted 1991 Wal-Mart incident report was inadmissible on the grounds it contains hearsay and/or opinion evidence.
I
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (1999). Evidence of the acts or conduct of a defendant occurring subsequent to the time of the transaction in controversy, if not too remote, can constitute relevant evidence within the meaning of Rule 401. See State v. Beatty, 64 N.C. App. 511, 515, 308 S.E.2d 65, 67, disc. review denied, 309 N.C. 823, 310 S.E.2d 354 (1983); 29 Am. Jur. 2d Evidence § 526 (1994); see also N.C.G.S. § 8C-1, Rule 406 (1999) (evidence of “routine practice of an organization ... is relevant to prove . . . conduct was in conformity with . . . the routine practice”).
In this case, Seamon was properly permitted to testify he had observed, within 18 months after Kilgo’s injuries, the method used by Wal-Mart to pack and load its merchandise into its trailers, and he had observed merchandise fall out of Wal-Mart trailers when the rear doors were opened. The observations were not too remote in time and allow a reasonable inference that Wal-Mart loaded the Kilgo trailer, as they had loaded the trailers observed by Seamon, without
II
A subpoena duces tecum compels the production of “records, books, papers, documents, or tangible things,” N.C.G.S. § 1A-1, Rule 45(c) (1999), patently material to the inquiry, in the context of “a discovery deposition, hearing, trial, or other proceeding in which testimony is to be received,” 2 G. Gray Wilson, North Carolina Civil Procedure § 45-3, at 98 (2d ed. 1995) [hereinafter 2 North Carolina Civil Procedure]-, Vaughan v. Broadfoot, 267 N.C. 691, 699, 149 S.E.2d 37, 43 (1966). The subpoena may be issued by the clerk of superior court, a trial judge, a magistrate, or a party or their attorney. 2 North Carolina Civil Procedure § 45-3, at 98; N.C.G.S. § 1A-1, Rule 45(a), (b). It must be signed by the person issuing it. N.C.G.S. § 1A-1, Rule 45(a). The object of the subpoena duces tecum is to secure the production of evidence for presentation to the court, not to secure items for inspection. 81 Am. Jur. 2d Witnesses § 19 (1992); see N.C.G.S. § 1A-1, Rule 34 (1999) (procedure mandated for discovery of documents). Thus, this subpoena is not properly used for discovery purposes.
In this case, Wal-Mart did not move to quash the subpoena duces tecum,
Wal-Mart argues the un-redacted incident report was not admissible, because it contains hearsay and opinion testimony. We disagree.
Any statement of an agent of a party is admissible into evidence against the principal party if the statement (1) concerns “a matter within the scope of [the] agency,” and (2) is “made during the existence of the [agency] relationship.” N.C.G.S. § 8C-1, Rule 801(d)(D) (1999). In this case, Marmer was the manager of the Sam’s Club at the time Kilgo was injured, and his job responsibilities called for him to complete a form incident report each time someone was injured at the store. The form report called for basic information, i.e., date of accident, nature of injuries, name of injured party, and witnesses to the accident. It also asked for the manager’s “COMMENTS ON HOW [THE] INCIDENT OCCURRED,” In his capacity as manager, Marmer, on the date of Kilgo’s injuries, included on the form his comments on how the incident occurred. Marmer was, thus, an agent of Wal-Mart at the time he entered his comments on the incident report and the entry concerned a matter within the scope of his agency. The un-redacted report was, accordingly, properly admitted into evidence and is not
Wal-Mart finally argues the trial court erred in precluding its expert from testifying about the methodology used by the Plaintiffs’ expert in evaluating Kilgo’s vocational rehabilitation prospects. We disagree. The trial court has great discretion with respect to the examination of witnesses, see State v. Covington, 290 N.C. 313, 334-35, 226 S.E.2d 629, 644 (1976), and we observe no abuse of that discretion in this case.
No error.
. The judgment reflects a jury award of $2,000,000.00 for Louis Kilgo, for his personal injuries, and $225,000.00 for Carole Kilgo, for her loss of consortium.
. The trial in this case began on 2 November 1998 and extended through 13 November 1998.
. We reject Wal-Mart’s argument that Seamon’s testimony is not relevant because his testimony related to the unloading of a trailer of merchandise delivered to a Wal-Mart retail store, not a Sam’s store. Although the delivery in this case was to a Sam’s store and there is some evidence merchandise is loaded somewhat differently, the trial court is given broad discretion in determining whether the evidence is relevant and we discern no abuse of discretion in this case. In any event, this distinction goes more to the weight of the evidence, not its admissibility. Finally, even if it was error to admit this evidence, Wal-Mart has not shown it was prejudiced thereby. See FCX, Inc. v Caudill, 86 N.C. App. 272, 280, 354 S.E.2d 767, 773 (1987) (burden on party complaining about the evidence to show error was prejudicial).
. Wal-Mart argues once it objected to Seamon’s testimony the trial court had an affirmative obligation to conduct a voir dire hearing to determine the admissibility of the testimony under Rule 404(b). We disagree. The trial court is required to conduct a voir dire hearing only if the evidence is offered pursuant to Rule 404(b). See State v. Morgan, 315 N.C. 626, 636, 340 S.E.2d 84, 91 (1986). The Plaintiffs had an obligation to identify the purpose for which the evidence was being offered only if requested to do so, either by the trial court or the party objecting to the evidence. See State v. Ford, 136 N.C. App. 634, 640, 525 S.E.2d 218, 222 (2000). In this case, the Plaintiffs did not identify their purpose for offering the evidence and there was no request that they do so.
. A subpoena duces tecum is appropriate to make discovery of documentary evidence held by a non-party. N.C.G.S. § 1A-1, Rule 45(d). In that context, we note a Rule 45(a) subpoena is required to mandate a non-party’s attendance at either a Rule 30
. A subpoena duces tecum may not be proper for a variety of reasons, including, documents are not relevant, material is privileged, or request is over-broad. See North Carolina Civil Procedure § 45.4, at 101-02. Furthermore, the subpoena should be quashed “if it is unreasonable and oppressive.” N.C.G.S. § 1A-1, Rule 45(c)(1).
. The record reveals an earlier subpoena for the same 1991 Wal-Mart incident report and a written motion to quash that subpoena. That subpoena, however, was unsigned, and thus, was not valid and enforceable. The Plaintiffs subsequently issued and served a new subpoena for the same incident report, the subpoéna now at issue in this case, and the record does not reveal a motion to quash that subpoena.
Nonetheless, Wal-Mart argues in this Court the subpoena must be quashed because of a “procedural impropriety.” Specifically, the subpoena “directing a party to produce documents during or just prior to trial is improper, and may not be used instead of established discovery procedures.” Although the issue is not presented in this Court, as it was not raised in the trial court, we note that not every subpoena directing a party to produce documents during or just prior to a trial constitutes improper discovery. We see nothing improper about the subpoena in this case.
. Wal-Mart also argues the redacted portion of the incident report was not admissible because it was prepared in anticipation of litigation and, thus, constituted “work product.” This is an issue that was not raised in the trial court either by a motion to quash the properly issued subpoena or by any objection to the admission of the incident report. We note, however, the incident report was prepared in the regular course of business and would not, therefore, be protected under the “work product” rule. Willis.v. Power Co., 291 N.C. 19, 35, 229 S.E.2d 191, 201 (1976).
. Furthermore, the “COMMENTS” in the report about what caused the injuries constitute admissible opinion testimony by a lay witness in that Maimer’s opinion was based on perceptions he obtained from observing the accident scene after the merchandise fell from the trailer. N.C.G.S. § 8C-1, Rule 701 (1999).
Reference
- Full Case Name
- LOUIS KILGO, and wife CAROLE KILGO v. WAL-MART STORES, INC., WAL-MART STORES, INC., d/b/a SAM'S WHOLESALE CLUB
- Cited By
- 5 cases
- Status
- Published