B & K Rentals And Sales Co., Inc. v. Universal Leaf Tobacco Co.

596 A.2d 640 (Md. 1991)

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Nature of the Case

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Facts

D owned and operated a tobacco warehouse. P leased a portion of the warehouse to store equipment used in its business of renting scaffolding and seating for public gatherings. A fire broke out at the warehouse destroying most of P's equipment. P brought an action for damages against D for negligence. Two of D's employees, Johnson and Grimes, were present and working within the tobacco warehouse. Johnson was killed by the fire. P neither deposed nor subpoenaed Grimes as he could not be located. Rather, P called Lt. Klasmeier, a fire investigator with the Fire Department, as an expert witness for the purpose of testifying as to the cause of the fire. Lt. Klasmeier had investigated the fire in progress and had received a written report from Lt. Stallings, who is also a fire investigator regarding the origin and cause of the fire. Lt. Stallings had interviewed various people, including Grimes, at the scene of the fire. Grimes told Lt. Stallings that he and Johnson were the only two people working at the warehouse and that Grimes had lit an acetylene torch for Johnson a couple of hours before the fire. Grimes stated that Johnson was using the torch to burn strings caught in the jack wheels of a wooden dolly. Grimes heard a popping noise and saw smoke coming from the area where Johnson had just finished burning the string from the jack wheels. Grimes believed the cause of the fire was related to Johnson's use of the acetylene torch. D objected to the admission of the report, as well as a second report written by Lt. Klasmeier. D claimed them to double-level hearsay. Little or no objection was raised that the reports constituted business records. The business records hearsay exception may allow the admission of the lieutenants' firsthand observations contained within the reports, Grimes was not part of the county fire department 'business' and his hearsay statements made to Lt. Stallings and contained within the reports would have to be excised unless they were admissible under some other hearsay exception. The trial court excluded the reports, as well as Lt. Stallings' in-court testimony because each was based upon Grimes' hearsay statements, which it determined qualified neither as admissions of a party opponent nor as part of the undifferentiated res gestae. Lt. Klasmeier was permitted to testify that in his opinion 'the cause and origin would have been the actions of Johnson using an acetylene torch to burn strings off of wheels inside the warehouse.' The case went to the jury on a res ipsa loquitur instruction, and the jury returned a verdict for P for $123,252.00. D moved for judgment notwithstanding the verdict on the grounds that the expert opinion of Lt. Klasmeier was improperly admitted into evidence. The trial court granted the motion and entered judgment N.O.V. P filed motions for a new trial and for reconsideration which were denied by the trial court. P appealed. The Court of Special Appeals affirmed the judgment of the trial court. P appealed.