A patron sued a deli for breach of warranty of fitness and for negligence, alleging that he was poisoned by the food he ate at the deli, causing him to be hospitalized for a period of one week and to have his stomach pumped.
As part of its defense, the deli’s counsel called the manager of the deli. The manager was asked how many bean dinners he served on the day the patron took ill. He answered, “200.” He was then asked how many complaints he received. Upon objection by the patron’s counsel, the question was excluded. After a verdict for the patron, the deli appealed, alleging error in the exclusion of the question by the trial judge.
The appellate court should:
A. Uphold the trial judge, because the question called for the hearsay opinion of the 200 diners that the beans were wholesome as shown by their failure to complain to the manager.
B. Uphold the trial judge, because of the deli’s failure to make an offer of proof.
C. Reverse the trial judge, because the offered testimony is not hearsay.
D. Uphold the trial judge, because the exclusion of the evidence, even though wrong, constituted harmless error.
{ 5 comments… read them below or add one }
Answer C is correct. The manager can testify from first-hand knowledge that he received no complaints about the beans on the day in question. Arguably, he is placing into evidence the out-of-court opinions of those people who ate in the restaurant and found the food satisfactory. However, this reasoning does not make the evidence hearsay under the Federal Rules of Evidence because Federal Rule 801(a) defines a statement as an oral or written assertion or nonverbal conduct intended as an assertion. While the individuals who ate at the restaurant may have had an opinion as to the food, they did not intend their mere failure to complain to the manager as an assertion that the food was good. Since the silence of the patrons is not a statement, the report of the conduct by the manager is not hearsay. Therefore, A is incorrect.
Answer B is incorrect. Under Federal Rule 103(a)(2), an offer of proof is not required on direct examination where the answer is obvious from the context. Since the defendant’s counsel would not have asked this question unless the manager’s answer was “none,” this is a situation where the answer is obvious from the context and no offer of proof was required.
Answer D is incorrect. One of the best ways to prove food contamination is to show that other people who ate the same food were sick. Therefore, evidence that food from the batch in question was consumed by a large number of people who did not get sick is probative to show that the food was not contaminated. The evidence is not hearsay and the counterweights to relevancy under Federal Rule 403 would not cause it to be excluded. Therefore, the trial judge’s wrongful denial of the admissibility of this testimony is error, and this error is not harmless because of the high probative value of this evidence.
D.
Answer ‘D’
Answer B.
Answer D. The failure to allow information regarding any complaints by 200 diners has only minimal relevance as to whether patron was poisoned. No information was presented to show patron ate beans. So, even if other diners did complain about the beans, it does not amount to a material fact which goes to the question of whether deli is liable.