Listen to everything the witness says before trying to impeach

Mollie Pawlosky  Iowa Commercial Litigation Dickinson Law Des Moines, Iowa

Posted on 12/20/2016 at 09:00 AM by Mollie Pawlosky

Mendez sued an apartment building owner and the building’s manager after slipping and falling down a flight of exterior stairs at the building’s entrance.  The jury found the owner and the manager were not at fault.  Mendez appealed, arguing that the district court should not have excluded a cell phone video of the area where Mendez fell.

The Iowa Court of Appeals, in Mendez v. Lacina, No. 15-1745 (Nov. 9, 2016), affirmed the district court, holding that the exclusion of the video was not an abuse of discretion.  Mendez attempted to introduce a video of the premises where he fell, showing stairs and sidewalks covered in snow.  Mendez argued that the video was to be used as impeachment evidence only, to refute the testimony of Rosario Gonzalez, who was hired by the building manager to shovel and salt the sidewalks and stairwell of the building.  Specifically, Mendez argued that Gonzalez had testified that she had never seen the stairs in a slippery condition, and that the stairs were covered and snow did not fall on them.

In reviewing the trial testimony, however, the Court of Appeals found that although Gonzalez first testified that she had never seen the stairs slippery, because they “are pretty covered, so snow does not fall on them,” in response to the next question, Gonzalez continued, “Well, when it blow, perhaps some can fall there.  But that’s what we are ready, so we can shovel, remove it and throw some salt.”

In light of the full reading of her testimony, the Court of Appeals “agree[d] with the district court that the video does not impeach anything that Mrs. Gonzalez said in terms of the snow clearing practices she and her husband employed in February 2008.”  The video was made 11 months after Gonzalez fell, and the video did not depict the conditions at the time of the fall, so the video “could not possibly impeach Gonzalez’s conclusory testimony there ‘obviously’ was no snow on the stairs at the time of the fall.”  Moreover, Gonzalez “immediately clarified” that snow could fall on the steps when it blows, which was confirmed by photos that had been admitted without objection.  The video was cumulative of the photographic evidence.  As the video had, if any, only marginal impeachment value, it was not an abuse of discretion to exclude the video.

The lesson of Mendez is to objectively listen to witness testimony.  Gonzalez admitted that snow could fall on the stairs when blown. In light of that clarifying testimony, there was no reason to try to impeach her prior statement.  For further information regarding Mendez v. Lacina, or regarding trial techniques, contact Mollie Pawlosky.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

Mollie Pawlosky


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