Opinion
No. 2-822 / 02-0168
Filed January 15, 2003
Appeal from the Iowa District Court for Monona County, Edward Jacobson, Judge.
Appellants claim the trial court abused its discretion in not allowing the testimony of a rebuttal witness. AFFIRMED.
Timothy Bottaro of Vriezelaar, Tigges, Edgington, Rossi, Bottaro Boden, L.L.P., Sioux City, for appellant.
James Villone of Klass, Stoik, Mugan, Villone, Phillips, Orzechowski, Clausen Lapierre, L.L.P., Sioux City, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Mary Berry, individually and as mother and next friend of Nicholas Cox, Antonio Berry, Isaac Berry, Anson Berry and Alendria Berry, appeals from a judgment entered in favor of the defendant, Maple Valley Community School District, in a personal injury action. She claims the trial court abused its discretion by not allowing a rebuttal witness to testify. We affirm.
I. Background Facts and Proceedings.
In February 2000, Berry and two of her children attended a book fair at the Castana site of the Maple Valley Community School District (Maple Valley). The school held the book fair on the stage in the gymnasium. Books were arranged on bookcases and tables at various locations on the stage. During her visit to the book fair, Berry fell off the stage and injured herself.
Berry filed a petition against Maple Valley in February 2001. On December 18, 2001, the matter came before the court for trial and jury selection began. Prior to voir dire, it was agreed that if any prospective juror had knowledge of the book fair, the juror would be questioned outside the presence of the jury panel. Two potential jurors were excused for their familiarity with the book fair. One of the excused jurors, Donald Davis, was a former custodian at the Castana facility.
Berry asked to call Davis as a witness. The trial court denied her request because Davis had not been identified in discovery or on any witness list. After the defense rested, Berry attempted to call Davis as a rebuttal witness. Following an offer of proof, the court refused to allow Davis to testify. The jury subsequently returned a verdict in favor of Maple Valley after determining Berry was eighty percent at fault. Berry appeals.
II. Scope of Review.
A trial court has considerable discretion in admitting rebuttal testimony. Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996); State v. Bakker, 262 N.W.2d 538, 543 (Iowa 1978) (citing State v. Hansen, 225 N.W.2d 343, 351 (Iowa 1975)). The court's ruling will be disturbed only upon the complainant's showing of a clear abuse of discretion. Carolan, 553 N.W.2d at 889.
III. Discussion.
Berry claims the district court abused its discretion in not allowing the testimony of her potential rebuttal witness, Donald Davis. She asserts the evidence was relevant because Davis had personally assisted in setting up book fairs in the past. She argues that Davis's testimony contradicted the testimony of the school librarian, Ellen Sandvold, regarding prior book fairs and would serve to impeach her. Both Berry and Maple Valley called Sandvold as a witness at trial.
Rebuttal evidence offers an opportunity for a party to respond only to a new matter raised in the opponent's case. 7 James A. Adams and Joseph P. Weeg, Iowa Practice § 611.5 at 493 (2002). "Rebuttal evidence is that which explains, repels, controverts, or disproves evidence produced by the opposing party." Carolan, 553 N.W.2d at 889. Rebuttal is not an opportunity for a party to present evidence that was proper in its case-in-chief. Id. (citing 75 Am. Jur.2d Trial § 372, at 573 (1991)). However, the fact that testimony might have been useful and usable in the case-in-chief does not necessarily preclude its use in rebuttal. Id. (citing Blakely v. Bates, 394 N.W.2d 320, 324 (Iowa 1986)).
Davis's testimony did not clearly rebut a new matter offered in Maple Valley's case. Moreover, Berry's offer of proof leaves substantial doubt regarding the relevance of Davis's testimony. When asked when he last worked at Castana, Davis responded, "Back up five years." The offer of proof reveals Davis has no knowledge regarding the book fair conducted in 2000. It further suggests he has no knowledge regarding book fairs conducted during at least the five years before Berry was injured. We conclude the appellant has failed to show the trial court committed a clear abuse of discretion in not allowing the testimony of Davis on rebuttal.
AFFIRMED.
Vogel, P.J., concurs; Hecht, J., dissents.
I respectfully dissent. The plaintiff asserted in this case that the defendant negligently arranged book displays on the school's gymnasium stage. In particular, plaintiff claimed defendant's employee created a risk of injury to customers by configuring book displays in a fashion that permitted or encouraged customers to walk too close to the edge of the stage. Ellen Sandvold was called as a witness during Berry's case-in-chief. Sandvold testified she had been responsible for the schoolbook fair for eleven years. Plaintiff's counsel sought to elicit from her an admission that on occasion prior to Berry's injury certain bookcases had been positioned near the edge of the stage:
The bookcases were apparently on wheels and were also described as "carts."
Q. Now, you could have put those bookcases that are shown in Exhibits 5, 6 and 7 along the edge of the stage with their backs to the outside so that people wouldn't be walking along the edge of the stage?
A. Yes, I could have.
Q. And you had done that in the past, haven't you?
A. No, I have not. I have been there for 10 years and I have never put the carts to — with their backs facing the gym floor.
Defendant also called Sandvold to the stand. During her direct testimony in defendant's case-in-chief, she was asked about the manner in which the displays were configured on the stage at the time of Berry's injury:
Q. How can you be sure that the carts were where you now say that Exhibit 107 shows they were?
A. Because I set up the book fair. And when I set it up I always set them back on that back wall because of the rollers. (Emphasis supplied).
Plaintiff then attempted to offer rebuttal testimony from Donald Davis, a retired school custodian. Davis testified that he assisted in setting up the book fair displays during the twelve and one-half years when he was employed as the school's custodian. Although he had been retired for five years, the last three book fairs he was familiar with were on the gym stage. When asked about the configuration of the bookcases in relation to the edge of the stage, he testified as follows:
Q. And in the years that you set up on the stage, what was set along the edge of the stage floor?
A. These bookcases were, the folded envelope-type shelving or cases like these right here (indicating).
Q. In Exhibit No. 7?
A. Yes.
Q. What did you do with those bookcases?
A. Those was put along the north side of the stage . . . approximately 18 inches in from the edge of the stage (indicating).
***
Q. And so these carts that are on rollers were placed along the edge of the stage, you say about a foot and a half from the edge?
A. Right.
Q. And then which direction were the books pointed at?
A. To the south side towards the stage wall.
***
Q. And would people then be able to get to walk along the edge of the stage?
A. They could, although there was no reason to do that.
Q. There were no books displayed —
A. No books displayed facing the gymnasium floor.
The district court's explained its ruling excluding the testimony of Davis:
THE COURT: It's the opinion of the Court that while his testimony may go to rebut some testimony that was heard in the courtroom today, it would be testimony that was heard on direct by the plaintiff as opposed to testimony that was heard from the defendant. In other words, it rebuts a witness that you called to testify for the plaintiff today and it does not rebut anything that Mr. Phillips offered in testimony on behalf of the defendant. And for that reason, I don't believe it's proper rebuttal and I'm not going to allow him to testify. . .
I would hold that the testimony of Davis was properly calculated to rebut the testimony of Sandvold offered by the defendant. It is true, as the majority suggests, that the subject matter (the positioning of the book displays) was first raised during Sandvold's testimony during the plaintiff's case-in-chief. However, defendant returned to the subject in its case by calling Sandvold to testify again and vouched at that time for her version of how she had "always" positioned the displays. This rendered the subject sufficiently "new" to permit the plaintiff to offer rebuttal testimony. In my view, the district court abused its discretion by excluding rebuttal testimony intended to impeach Sandvold's testimony on an important fact question pertaining to defendant's liability.
I do not share the majority's doubt about the relevance of Davis's testimony. The tenures of Davis and Sandvold clearly overlapped. Davis testified the gymnasium stage was the venue for the book fair during the last three years of his employment. Although the majority correctly notes that Davis had no personal knowledge of the book fair in the year 2000 because of his retirement, the proposed rebuttal testimony was relevant because it directly contradicted Sandvold's testimony as to how she claimed to have "always" arranged the displays.
Accordingly, I would reverse and remand for new trial.