MESSIER v. WALKER MANUFACTURING COMPANY

Filing 13

ORDER denying 11 Motion for Jury View. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NATHAN MESSIER,
Plaintiff,
v.
WALKER MANUFACTURING
COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)
)

2:13-cv-00040-JAW

ORDER ON DEFENDANT’S MOTION FOR JURY VIEW
Concluding that the Defendant demonstrated no good reason for a field trip
to Kittery, Maine, for a jury view of the scene of the accident in this personal injury
products liability case, and that there is every good reason to hold the trial inside
the federal courthouse, the Court denies the Defendant’s motion for a jury view.
I.

STATEMENT OF FACTS
The Complaint alleges that Nathan Messier was operating a Walker Mower

on an embankment in Kittery, Maine, on April 21, 2010, when he suffered severe
and permanent injuries. Notice of Removal Attach. 1, Compl. (ECF No. 1-1). The
Complaint further alleges that Walker Manufacturing Company’s (Walker) Walker
Mower was defective and unreasonably dangerous in design and manufacture, that
Walker failed to provide adequate warnings of its dangerousness, that Walker
breached express and implied warranties, and that Walker was negligent in
designing, testing, and manufacturing the Walker Mower.

Id. at 1-3.

In its

Answer, Walker denies the essential allegations of the Complaint and asserts Mr.

Messier’s own negligence as an affirmative defense. Notice of Removal Attach. 4,
Answer (ECF No. 1-4).
Although the parties are still engaged in discovery, Walker filed a motion for
jury view. Mot. and Mem. in Support of Def., Walker Mfg. Co. for a Jury View (ECF
No. 11). Walker explains that the accident took place on a sloping embankment
where Mr. Messier was mowing the grass and that, according to Mr. Messier, the
Walker Mower bucked twice, the second time propelling him off the Mower onto his
face and torso, and that the Mower ran over his legs, causing significant injuries.
Id. at 2. Walker wishes to have the jury visit the site of the incident in order “to
provide the jury with an opportunity to perceive exactly what the plaintiff had an
opportunity to perceive immediately prior to the time he decided to mow the entire
hillside with the Walker mower.” Id. at 3. Walker claims that a jury view would
bolster its comparative negligence defense, and that photographs, videotapes, maps,
and diagrams would be inadequate substitutes. Id. at 5. Walker offers to arrange
for transportation for the court and jury at its expense. Id. at 4.
Mr. Messier objects. Pl.’s Opp’n to Def. Walker Mfg. Co.’s Mot. for Jury View
(ECF No. 12). Citing State v. Heald, 333 A.2d 696 (Me. 1975), he says that Walker
has failed to establish that a jury view will “substantially aid” the jury in rendering
a “proper decision.” Id. at 1. He contends that photographs “paint[] a clear picture
of the slope at issue in this case.” Id.
II.

DISCUSSION

2

Whether to permit a jury view is “entrusted to the sound discretion of the
trial court.” United States v. Crochiere, 129 F.3d 233, 236 (1st Cir. 1997). This
discretion is part of the trial court’s authority to decide “matters relating to the
orderly conduct of the trial and the mode of presenting evidence.” United States v.
Passos-Paternina, 918 F.2d 979, 986 (1st Cir. 1990). The First Circuit has listed
some factors for the trial court to consider, including “the orderliness of the trial,
whether the jury would be confused or misled, whether it would be time-consuming
or logistically difficult, and whether cross-examination [would be] permitted
regarding the details of the scene.”

Crochiere, 129 F.3d at 236.

Another

consideration is whether the parties would be able to present other evidence of the
scene “in the form of testimony, diagrams, or photographs.” Id.
Here, the Court is not persuaded that a jury view would be appropriate.
First, the weather is known to change in the state of Maine1, and to gain the proper
perspective of a grassy slope, the slope should not be covered with snow. Thus, if
the Court granted the request, trial could not be held during snow season, which —
depending on the year — would eliminate mid-November to late March for trial.
The Court is not inclined to hold this case in abeyance waiting for the snow to melt
and the grass to grow.
Second, the accident is alleged to have taken place in Kittery, Maine, about
fifty miles from the federal courthouse in Portland, requiring roughly an hour of

Neither party has described the weather conditions on the day of the accident, but it took
place on April 21, 2010. Compl. ¶ 4. In Maine, late April is known as mud season, since it typically
finds the snow melted but the ground soggy.
1

3

travel each way. To take the jury there and back would exhaust at least half a day
of trial.
Third, other than saying it is so, Walker has given no reason why other
means—such as testimony, photographs, videotapes, and topographic maps—could
not be effectively employed to convey the slope of the lawn where Mr. Messier was
injured.
Fourth, properly instructing a jury about the role of a view introduces a point
of possible complication, confusion, and controversy. The old rule was that a view
was not evidence but a mechanism to “facilitate contextualization of the evidence.”
Clemente v. Carnicon-Puerto Rico Mgmt. Assocs, L.C., 52 F.3d 383, 386 (1st Cir.
1995). In United States v. Gray, 199 F.3d 547 (1st Cir. 1999), however, the First
Circuit did away with the “blanket prohibition” on the use of a view as evidence,
reasoning that “it is unrealistic to exclude a view from the status of evidence in
every circumstance.” Id. at 548. The First Circuit observed that “it is unlikely that
jurors, confronted with testimonial evidence at odds with what they have seen, will
apply the metaphysical distinction suggested and ignore the evidence of their own
senses.” Id. at 549 (internal punctuation omitted). Gray left the specifics of the
new regime to be worked out in future cases:
[T]he fact that we now regard a view to be within the category of
admissible evidence not only endows a trial court with the same
discretion to control its admission that the court has in dealing with all
evidentiary matters, but also may in the future require special
techniques and practices as experience indicates. This opinion does
not purport to resolve all issues that may arise stemming from the
status of a view as evidence; it simply removes the concept of a view
from the highly ambiguous state of being something to consider but not
4

evidence. Our holding thus increases the range of admissible evidence
but leaves intact the district court’s authority to refuse a view in
particular cases, or to exclude a view, or portions of it, from evidence
when an on-the-scene observation does not transpire as the court had
anticipated.
Id. at 550. At the same time, the First Circuit reaffirmed that “[p]recautions . . .
must be taken to minimize problems, because jury supervision is more difficult
outside the courtroom.” Id. The Court must, for instance, ensure that the judge is
present, place limits on the interaction between counsel, the subject of the view, and
the jurors, and ensure “that what transpires at the view is fully and accurately
recorded, most likely by a court reporter.” Id.
There are other considerations as well, including the need to maintain
security for court personnel, the jurors, and others, to maintain confidentiality as to
internal juror conversations, and to make certain that the conditions at the scene
during the view fairly show the conditions that existed on April 21, 2010. The list of
reasons for why a jury view in this case is a bad idea could go on.
In short, Walker has given no good reason for a field trip to Kittery, Maine,
during this trial and there is every good reason for the trial to take place inside the
federal courthouse.
III.

CONCLUSION
The Court DENIES Walker Manufacturing Company’s Motion for a Jury

View (ECF No. 11).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
5

Dated this 19th day of July, 2013

6