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Bell v. T.R. Miller Mill Company2/4/2000
ler's quality-control manager.
Bell argues that the trial judge erred in excluding this evidence because, she says, it was relevant to show a "pattern and practice of misconduct" on the part of Miller. On the other hand, Miller contends that the trial judge properly excluded the memorandum because, it says, Bell failed to lay the proper predicate for its admission and failed to show that the memorandum was created on a date reasonably contemporaneous to the date that the pole in question was treated, or manufactured, by Miller. Miller also asserts that the trial judge properly excluded the Pate memorandum because, Miller says, it was cumulative of copies of other inspection audits that the trial judge allowed Bell to introduce.
There is a dispute as to the exact year when the Pate memorandum was created. Bell argued that the memorandum was created in January 1989. However, Pate testified at a deposition that he published the memorandum in January 1988. Bell's counsel assured the trial judge that he could prove that the memorandum was created in 1989. The trial judge conditioned the admission of the memorandum on Bell's counsel's being able to show that the memorandum was created more recently than January 1988. The trial judge reasoned that if the memorandum was created in 1988, it would be too remote to be probative as to alleged defects in a pole treated by Miller in late 1989.
Rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So. 2d 29 (Ala. 1998). Based upon the facts of this case, we find no abuse of discretion in the trial judge's excluding the Pate memorandum. Bell's counsel assured the trial judge that he could show that the memo was created more recently than 1988. The trial judge conditioned the memorandum's admissibility on Bell's counsel's being able to establish that the memo was created later than 1988, but the record does not indicate that Bell's counsel established that. Also, the memorandum was cumulative of other evidence that was admitted.
VI.
Summary
We conclude that the telephone pole at issue in this case was a "product" for purposes of the AEMLD. Based upon that conclusion, we hold that it was error for the trial court to grant Miller's motion for a judgment as a matter of law on Bell's AEMLD and negligence claims. We conclude that the trial court properly entered the judgment as a matter of law in favor of Miller on Bell's wantonness claim. We further conclude that the trial court did not abuse its discretion in excluding the Pate memorandum, based upon the facts shown in this record. Therefore, the judgment of the trial court is affirmed insofar as it relates to Bell's wantonness claim. The judgment is reversed insofar as it relates to Bell's AEMLD and negligence claims, and the cause is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Cook, See, Lyons, Brown, Johnstone, and England, JJ., concur.
Houston, J., recuses himself.
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