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Paulos v. Covenant Transport2/20/2004
handbook was properly admitted under the learned treatise exception. Pursuant to the dictates of Butler, the trial court properly proscribed its admission as an exhibit and correctly kept it from jury deliberations. See Butler, 1999 UT 85 at ("the trial court erred by allowing the page to be admitted into evidence as an exhibit and by allowing it to be taken to the jury room for deliberation").
Moreover, any error in admitting the ATA handbook under the learned treatise exception was harmless. Paulos submitted that the ATA handbook was admissible as non-hearsay because it provided a standard of care. "There is no doubt that in some jurisdictions safety codes have been excluded as hearsay. . . . But in others they have been admitted after proper identification by a qualified witness for the purpose alluded to above, i.e., as some evidence of the proper standard of care but not as absolute evidence of such standard." McComish v. DeSOI, 200 A.2d 116, 121 (N.J. 1964). Paulos relies on Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975), in support of his argument that " vidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence." Id. at 1180. Paulos also cites McComish, a case mentioned by the Muncie court, to bolster his contention that the ATA handbook should have been admitted as an exhibit and given to the jury. However, McComish itself is a clear example of why any error in this instance is harmless:
Criticism has been leveled in this case not only against the competency of the codes but against the introduction of the documents as well. This secondary problem is one which must be left largely to the discretion of the trial court. Whether the entire code or just the pertinent portion should go to the jury (removed from the document, or copied or photostated), or whether the pertinent portion should simply be read to the jury, must remain in his hands, and an appellate tribunal will not interfere unless abuse of discretion is manifest.
McComish, 200 A.2d at 122 (emphasis added). In the instant case, the trial court exercised its discretion in allowing the pertinent portion of the ATA handbook to be read to the jury, rather than admitting it as an exhibit. The pertinent portion was not only read into evidence and explained by an expert witness, but also displayed to the jury in the form of a poster. Thus, any error in admitting the ATA handbook under rule 803(18) was harmless.
II. Cooper Strength's Elapsed Time Estimate
Paulos asserts that the trial court erred by allowing Cooper Strength (Strength) to estimate the amount of time that elapsed between the time the Mucha vehicle attempted to pass the Covenant semi and the point of the accident. Counsel for Covenant told Strength to visualize the event, raise his hand when the Mucha vehicle began to make its pass, and give another signal at the time when the collision would have occurred. The time that elapsed between Strength's hand signals was then measured to be approximately five seconds. Paulos characterizes this as a staged demonstration and claims that, as such, Covenant was required to recreate the actual event with substantial similarity. We disagree with Paulos's characterization that Strength's elapsed time estimate was a staged demonstration of the actual event.
A staged demonstration is the "deliberate recreation of an event under staged conditions." Fusco v. General Motors Corp., 11 F.3d 259, 263 (1st Cir. 1993). Where staged demonstrations seem to resemble the actual occurrence of the event depicted, courts fear that "jurors may be misled because they do not ful
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