Grapes in the Produce Aisle: Incident Reports, Sweep Logs, and Rubber Mats
Marguerite Doyle, 68, falls in the produce aisle of a Ferndale grocery store at about 4:50 p.m. on a Saturday, fracturing her wrist. She sues Halstead Markets, alleging a grape on the floor. Three items are disputed. First, Halstead's incident report - a form the store manager completed 40 minutes after the fall - records the manager's own observations and also quotes produce clerk Ana Ruiz: 'I swept that aisle at 4:15, right before my break.' Ruiz has since moved to Portugal and will not testify. Second, a sweep log initialed hourly by clerks has no entry between 3:10 p.m. and 5:05 p.m. Third, two days after the fall, Halstead installed rubber mats at both ends of the produce aisle, and the manager testified at deposition, 'We'd always wanted mats there, but they were too expensive for a store our size.' Halstead also offers 22 seconds of security video time-stamped 4:47 p.m. showing the aisle, though not the floor near the grapes.
1. Doyle moves in limine to exclude the incident report and Ruiz's quoted statement. How should the court rule on each?
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The manager's own observations come in; Ruiz's quoted statement probably does not, on this record.
The report, MRE 803(6): a record of an act, event, or condition, made at or near the time by someone with knowledge, kept in the course of a regularly conducted activity, with the making shown by the custodian's testimony or certification. Forty minutes after a fall is 'at or near the time.' The real fight is regularity. If Halstead's managers fill out the form for every incident as routine practice, it qualifies. If the form is generated only after an insurer or lawyer is notified and in anticipation of a claim, the trustworthiness element fails and the report should be excluded.
Ruiz's quote is hearsay within hearsay, MRE 805, and each layer needs its own exception. The outer layer needs 803(6). The inner layer needs an exception for Ruiz herself. Rule 803(6) reaches statements by persons with a business duty to report, so if Ruiz had a duty to report her sweeps and the manager's practice was to record them, the statement rides in with the record. That foundation is unlikely to be made: a separate sweep log exists, and the manager would essentially be testifying to what an absent coworker told him. Without the duty, the quote is inadmissible, and the manager may testify only to what he personally saw.
Other routes: 804(b)(1) fails (no former testimony, no similar motive at a prior proceeding). The residual exception under 807 is a long shot, because a routine sweep statement carries no particular guarantee of trustworthiness, though a court could admit it with a cautionary instruction rather than lose the evidence entirely.
Practical move: seek redaction of the quote; if it is admitted, request an MRE 105 limiting instruction and subpoena Ruiz's employment and time records for impeachment.
2. What is the evidentiary significance of the gap in the sweep log, and who benefits from it?
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The gap cuts both ways - and mostly against the store.
MRE 803(7) permits evidence that a matter is absent from a record of a regularly conducted activity to prove that the matter did not occur or exist, provided the record was regularly kept for that purpose and the 803(6) foundation is satisfied. The inference Doyle wants: if the aisle had been swept at 4:15, the hourly log would show it; it does not, so the aisle was not swept between 3:10 and 5:05.
But 803(7) presupposes that the record was regularly kept. A two-hour hole in an hourly log is itself evidence that the log was not kept as required, which undercuts the foundation the store must lay for any use of the log. The likely outcome: the court admits the log after the store authenticates it, and the gap becomes the best evidence against the store's claim of routine inspection. Doyle can argue the missing entries are not clerical slips but a reflection of a busy Saturday afternoon.
The log also bears on breach and notice. If the aisle was supposedly swept hourly, a grape on the floor implies either a negligent sweep or no sweep at all. Request the store's scheduling records for 4:00-5:00 p.m. to identify who was on break, and any camera footage covering the aisle between 3:00 and 5:00.
If the store cannot produce the log pages for the missing period after being on notice of the claim, consider a request for a spoliation instruction - but be ready to show that the evidence was within the store's control and that its absence prejudices Doyle. Keep that request for the eve of trial, after the store has committed to an explanation.
3. Halstead moves to exclude all evidence of the mats installed two days after the fall, including the manager's 'too expensive' testimony. How should the court rule, and how should Doyle frame the offer?
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The mats are admissible for a limited purpose, with an instruction; framing is everything.
MRE 407 bars evidence of measures taken after an injury that would have made the injury less likely to occur, when offered to prove negligence, culpable conduct, a defect in a product or its design, or the need for a warning. Standing alone, evidence that Halstead installed mats two days after the fall would be excluded.
The rule's proviso allows such evidence for another purpose, including impeachment or - if disputed - proving feasibility. The manager's deposition answer ('we'd always wanted mats, but they were too expensive for a store our size') puts cost and feasibility squarely in dispute. Doyle may therefore offer the installation to rebut the claim that mats were impractical or unaffordable. Ask for an MRE 105 instruction telling the jury the evidence is not proof the aisle was unsafe before the fall.
The 'always wanted mats' answer is independently an admission of a party opponent under MRE 801(d)(2). But watch the trap: offering it to show the store knew the aisle was dangerous before the fall is precisely the prohibited inference, and the court may exclude it on that theory even though it is technically an admission. Frame the offer as rebutting feasibility and as going to the manager's credibility - not as evidence that a remedial measure was needed.
Procedure: raise this in a motion in limine before trial, with the deposition excerpts attached. Do not mention the mats in opening statement until the court rules, and if the store abandons the cost argument, expect the evidence to be excluded entirely.