IV. SUMMARY JUDGMENT
Summary judgment is warranted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The question raised by defendant's summary judgment motion is whether there exists a genuine dispute over the factual issue of defendant's state of mind. Defendant contends that plaintiff has produced insufficient evidence that defendant acted deliberately, wilfully or with reckless disregard for plaintiff's safety to enable plaintiff to present a case to the jury.
Where, as here, plaintiff bears the burden of proof, a defendant who moves for summary judgment on the basis that there is no genuine issue of material fact need not produce evidence showing the absence of a genuine issue. Celotex v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Once defendant points out the absence of a genuine issue, it becomes plaintiff's burden to present sufficient admissible evidence to demonstrate the existence of a jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986), quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575-1592, 20 L. Ed. 2d 569 (1968); Toro Co. v. Krouse, Kern & Co., 827 F.2d 155, 162-63 (7th Cir. 1987). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphases in original). Thus plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Plaintiff must produce sufficient evidence to allow a reasonable jury to return a verdict in her favor. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. In determining whether plaintiff has met this standard, the Court does not weigh the evidence or make credibility determination. See Anderson, 477 U.S. at 255, 106 S. Ct. at 2513; Stewart v. RCA Corp., 790 F.2d 624, 629 (7th Cir. 1986). Rather, plaintiff's evidence "is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 254, 106 S. Ct. at 2513. It is for this reason that cases involving intent are generally inappropriate for summary judgment. See Askew v. Bloemker, 548 F.2d 673, 679 (7th Cir. 1976). See also Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988).
In this case, looking at the evidence in the light most favorable to plaintiff, plaintiff has produced sufficient evidence of deliberateness, wilfulness or reckless disregard to survive defendant's motion for summary judgment. It reasonably can be concluded that David Wigdahl was approaching the ball at a faster rate of speed than were Robert Sieber and Dick Kuhn.
Sieber and Kuhn were approaching the ball from close to the line in which the ball had traveled,
perhaps as much as 20 to 30 degrees to the left.
Wigdahl was approaching the ball from the right, at a greater angle than Sieber and Kuhn.
Wigdahl called "leave it" to Dick Kuhn, his teammate, who then rode upfield past the ball.
Sieber attempted to follow Kuhn.
Wigdahl raised his mallet, an action used by some players to request that the officials call a foul, although such a request is not permitted by the rules.
As Wigdahl approached the ball, he had a clear view of the playing field and was in a position where he was able to see Sieber.
By raising his mallet, he apparently requested a foul to be called on Sieber,
and it can be inferred, therefore, that he did see Sieber. Wigdahl testified that he thought Sieber had crossed the line of the ball.
Although Wigdahl was approaching the ball from the right, and could have taken a backhand shot from the left side of his horse, he chose to cross the line of the ball to position himself for a stronger forehand shot from the right side of his horse.
He made no attempt to avoid running into Sieber, although he had an opportunity to take evasive action.
While his mallet was still raised, Wigdahl collided with Sieber.
Wigdahl's horse struck the rear end and hind legs of Sieber's horse behind the saddle.
Wigdahl knew that this is a very unstable point and is thus the most dangerous place for a horse to be hit.
Sieber's horse stumbled and started to recover, but Wigdahl kept on riding despite an opportunity to pull away. Wigdahl's horse thus hit Sieber's horse a second time, knocking it down and causing Sieber's head to strike the ground.
In the view of witnesses, Wigdahl's actions were not legal and constituted a foul.
Sieber, in contrast, did not commit a foul.
Based on this evidence, described in the light most favorable to plaintiff, a jury reasonably could conclude that defendant's action was deliberate, wilful or taken with reckless disregard for Sieber's safety. The jury could find that defendant saw the play developing, saw Sieber approaching the ball, and deliberately rode into Sieber's horse in an attempt to knock the horse over. That defendant's actions may have been taken only in the pursuit of a competitive advantage does not, as defendant argues, mandate denial of recovery. Bad motive is not an element of plaintiff's claim, and a similar desire for competitive advantage was presumably the motive in Nabozny, where the court reversed a directed verdict for the defendant.
Defendant also cites deposition testimony that there was no "bad blood" between Sieber and Wigdahl, that Wigdahl did not intend to harm Sieber, that Wigdahl did not see the play developing, and that Wigdahl did not have an opportunity to avoid the accident. This evidence, if believed, could lead to the conclusion that defendant did not act deliberately, wilfully or with reckless disregard. However, this evidence is not conclusive, and plaintiff's contrary evidence must be taken as true for purposes of this motion.
Defendant further argues that only two witnesses -- Jake Sieber and Michael Sparks -- support plaintiff's position, and that these witnesses are not credible because they are biased and their testimony consists of factually unsupported conclusions. Although these two witnesses are central to plaintiff's case, they are not the sole evidence in support of plaintiff's position. The testimony of other witnesses, in particular the three officials, lends support to plaintiff as well. Furthermore, the testimony of Sparks and Sieber does contain specific facts which support their conclusions with respect to defendant's state of mind. Finally, even though Sparks and Sieber may be subject to allegations of bias, their testimony is not so unbelievable as to allow the Court to usurp the jury's function as the judge of credibility.
For these reasons, defendant's motion for summary judgment is denied.
V. MOTIONS IN LIMINE
During a meeting in late December, 1984, Jake Sieber discussed the accident with the three officials (Michael Butler, Stuart MacKenzie and Brett Kiely). He revealed to them that he was considering litigation against the manufacturer of the helmet that Robert Sieber had been wearing. In January, 1985, at Jake Sieber's request, each of the officials completed a questionnaire concerning the accident. Defendant seeks a ruling that these questionnaires are inadmissible hearsay. Plaintiff does not dispute that the completed questionnaires constitute hearsay, but she argues that they should be admitted pursuant to Federal Rule of Evidence 803(5), the past recollection recorded exception to the hearsay rule.
The parties focus their arguments on two aspects of the past recollection recorded exception -- the requirement that the witness now has insufficient recollection to enable him to testify fully and accurately, and the requirement that the document accurately reflect the witness's knowledge at the time the record was made. The officials have each given deposition testimony at which they exhibited varying degrees of recollection of the accident. Neither party has informed the court whether these officials will be called as witnesses at trial, although both parties have included the officials in their lists of possible or definite trial witnesses submitted as part of a joint pretrial order.
Because the past recollection recorded exception is part of Rule 803 rather than Rule 804, the declarant need not be unavailable for it to apply. A question which neither party has addressed, however, is whether the exception applies in an instance where the declarant is available. In the usual circumstances, the witness's inability to sufficiently recollect the incident will be apparent from his in-court testimony. The normal procedure is then to use the document in an attempt to refresh the witness's recollection. If such an attempt is unsuccessful, the witness may read the document itself as a past recollection recorded, provided the witness establishes that he made or adopted it when the matter was fresh in his memory and that it correctly reflects his prior knowledge. The party eliciting this testimony may not introduce the actual record in evidence, although the opposing party may do so.
The difficulty with attempting to establish the admissibility of such a record without the declarant's presence is demonstrated by the parties' inability to agree on whether the officials' deposition testimony has satisfied the requirements of Rule 803. This difficulty lends additional support to the conclusion in Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F. Supp. 1190 (E.D. Pa. 1980), that the language of Rule 803 itself indicates that it applies only where the declarant testifies as a witness at trial. As the Zenith court pointed out, Rule 803 generally uses the term "declarant" to refer to the person whose statement is in question. Rule 803(5), however, uses the term "witness" instead. 505 F. Supp. at 1228-29 n.48. Based on this language and the inherent difficulties in applying Rule 803(5) where the declarant does not testify, this Court agrees with the conclusion in Zenith that Rule 803(5) is generally limited to instances where the declarant is present and testifies.
In the event that the officials are called at trial, the Court will address the Rule 803(5) issue at the time the problem arises. The witnesses' live testimony will then be used to determine whether the requirements of Rule 803(5) are satisfied. If testimony by the officials is not presented, Rule 803(5) will not permit the introduction of the records in evidence. An intermediate situation may well arise in this case, however, as there is a possibility that the officials' deposition testimony will be presented in lieu of their live testimony. See Fed. R. Civ. P. 32. In that situation, references to the questionnaires in the deposition testimony itself will be treated the same as live testimony would be treated. Questions concerning the questionnaires will be evaluated on a question-by-question basis. If the deposition testimony establishes that, at the time of the deposition, the requirements of Rule 803(5) were satisfied with respect to a specific instance of the deponent reading from the questionnaire, then Rule 803(5) will apply just as it would were the official testifying in court. The Court sees no need, however, to engage in such a question-by-question analysis at this time in light of the uncertainty as to whether the officials will testify at trial.
B. Character Evidence
Defendant also seeks to exclude evidence of his aggressive style of polo playing and evidence of specific instances where he may have been involved in collisions during polo games. He argues that such evidence should be excluded as irrelevant pursuant to F.R.E. 404. Plaintiff argues that the evidence of defendant's style of playing is admissible because it is relevant to intent and the absence of mistake or accident on defendant's part and that evidence of specific instances is evidence of habit admissible pursuant to F.R.E. 406.
The evidence which concerns defendant's general style of play rather than specific instances of aggressive play can be disposed of readily. Rule 404(a) provides that "evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Although Rule 404(a) provides three exceptions to this general rule, plaintiff does not contend that any of them apply in this case. (Plaintiff relies only on Rule 404(b), which applies only to specific instances, and Rule 406, which is inapplicable for reasons described below.) Pursuant to Rule 404(a), therefore, the Court will exclude evidence of defendant's general style of play. This evidence includes testimony that his style of play was "reckless" or "dangerous," that he played without regard for the safety of other players, or that he was an unorthodox player who cared more about hitting the ball and making a flashy play than about teamwork.
The testimony that defendant once said his style of play was a "scare factor" that was good for a couple of extra goals
is inadmissible for the same reason. This testimony would essentially constitute an admission by defendant that his style of play was rough, the inference being that he intended to play unnecessarily rough on this particular occasion. That is precisely the type of inference forbidden by Rule 404(a).
Rule 404(a) further precludes admission of the letter sent by the United States Polo Association to defendant and several other polo players in 1978 expressing concern over their style of play. The letter states in part:
At the last Board of Governors meeting in May, your name was brought up, and it was agreed that you should receive such a warning. This is in no way reflective of any single incident or indicative of bad sportsmanship. It does mean that your general style of playing is considered unduly dangerous and could potentially result in a serious accident.
This letter, as it states on its face, does not relate to a specific instance. It is, rather, a reflection that certain individuals believed defendant's style of play was dangerous. It is thus (hearsay) evidence of defendant's general character and is not admissible to show the recklessness of defendant's action in this particular incident. Plaintiff attempts to circumvent this problem by maintaining that the letter is relevant to show defendant's state of mind. The letter, it is argued, establishes that defendant knew that his aggressive style of playing was dangerous. Although that may be the case, it is only another way of stating that defendant had a character trait of intentionally playing dangerously. Rule 404(a) excludes the use of such evidence to show that defendant intentionally played dangerously on this particular occasion.
Evidence of specific instances of dangerous play by defendant is governed by Rule 404(b). The Seventh Circuit has consistently set forth a four-part test for determining the admissibility of such evidence:
Admission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough in time to be relevant to the matter in issue . . ., (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.