Interest of A.B., a Child
2010 ND 249
| N.D. | 2010Background
- Pizza Corner, Inc. sued C.F.L. Transport, Inc. for damages to frozen pizzas transported from North Dakota to Washington.
- C.F.L. driver Bruesch loaded pizzas at 39°F, then the temperature was recorded at 41°F upon arrival in Tacoma.
- Pizzas were unloaded, re-tarped, and shipped to Anchorage, where they were rejected as gelled on July 30, 2006.
- A bill of lading with a handwritten temperature notation accompanied the shipment and was later sent to Pizza Corner, Inc.
- District court admitted the bill of lading and notation under N.D.R.Ev. 803(6) as a business-record exception, and awarded damages, interest, and costs.
- On appeal, the North Dakota Supreme Court affirmed the judgment, holding the handwritten notation admissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the handwritten notation on the bill of lading is admissible as a business record | Pizza Corner contends the record falls within Rule 803(6) as a regularly conducted business activity. | C.F.L. argues the handwritten notation is hearsay and not properly foundationed. | Handwritten notation admitted as a business record under 803(6). |
| Whether the foundation for 803(6) was satisfied when a custodian from American Fast Freight was not called | Pizza Corner posits a qualified witness or custodian foundation was shown by integrated records and testimony. | C.F.L. argues there was no custodian testimony from the creating party. | Foundation satisfied by testimony from Pizza Corner that the document was integrated and relied upon as its records. |
Key Cases Cited
- Farmers Union Oil Co. of Dickinson v. Wood, 301 N.W.2d 129 (N.D. 1980) (records exception for business entries; foundation via custodian or qualified witness)
- United States v. Carranco, 551 F.2d 1197 (10th Cir. 1977) (bill of lading as admissible business record when integrated and relied upon)
- Brawner v. Allstate Indem. Co., 591 F.3d 984 (8th Cir. 2010) (foundation for business records may be provided by non-employee if conditions met)
- United States v. Lauersen, 348 F.3d 329 (2d Cir. 2003) (broad interpretation of qualified witness for 803(6) foundations)
- Air Land Forwarders, Inc. v. United States, 172 F.3d 1338 (Fed. Cir. 1999) (records admissible where entity relied on third-party records)
- Kanipes v. North American Phillips Electronics Corp., 825 S.W.2d 426 (Tenn. App. 1992) (handwritten statements by unidentified author raise hearsay concerns)