Minersville Safe Deposit Bank & Trust Co. v. BIC Corp.

176 F.R.D. 502, 48 Fed. R. Serv. 1318, 1997 U.S. Dist. LEXIS 20897, 1997 WL 812517
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 23, 1997
DocketCiv. A. Nos. 95-4548, 95-5538
StatusPublished
Cited by1 cases

This text of 176 F.R.D. 502 (Minersville Safe Deposit Bank & Trust Co. v. BIC Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minersville Safe Deposit Bank & Trust Co. v. BIC Corp., 176 F.R.D. 502, 48 Fed. R. Serv. 1318, 1997 U.S. Dist. LEXIS 20897, 1997 WL 812517 (E.D. Pa. 1997).

Opinion

[504]*504 MEMORANDUM

BARTLE, District Judge.

These actions arise out of the tragic deaths of two young children in a house fire which occurred in Shamokin, Northumberland County, Pennsylvania. Plaintiffs1 claim that Jared Klemka, the brother of the decedents, started the fire with a cigarette lighter manufactured by defendant BIC Corporation (“BIC”). The complaints originally contained strict liability claims in addition to the negligence claims before us now. Judge Marjorie O. Rendell, to whom these cases were originally assigned, dismissed the strict liability claims as well as one of the original defendants, Dillon Companies. BIC, the only remaining defendant, has moved for summary judgment on the negligence claims.

We follow the familiar summary judgment standard provided by Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is granted only if there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. See Fed. Rule Civ. P. Rule 56(c); see also Kornegay v. Cottingham, 120 F.3d 392 (3d Cir.1997). In addition, we make all reasonable inferences in favor of the non-moving party. Kornegay, 120 F.3d at 395.

It is undisputed that the fire in issue took place at the home of Tina Brown Klemka in the early morning hours of September 7, 1993. The following people were in the house at the time: Ms. Klemka; her boyfriend Greg Garverick; and her four children, Ashley (age 6), Donovan (age 4), Jared (age 3), and Cheyenne (age 1). According to Ms. Klemka, she put her children to bed in the upstairs bedrooms around 9:30 p.m. on September 6, 1993. Ms. Klemka and Mr. Garverick slept downstairs on the sofa. Some time after 3:00 a.m. Jared’s crying woke Ms. Klemka. She noticed that the chair in the corner of the living room was on fire. Although Ms. Klemka and Mr. Garverick were able to rescue Jared and Cheyenne, Ashley and Donovan were not so fortunate. They perished in the flames.

After Ms. Klemka had removed Jared from the burning house, he returned, and she had to carry him out a second time. She did not see him with a lighter on either occasion. Only some 45 minutes after the fire started did she observe Jared holding a BIC lighter when he was outside the home. The lighter in question has been lost.

Plaintiffs’ experts, Woodrow Shaner, a Pennsylvania State Police Fire Marshal,2 and Lyle Keeler, an independent fire investigator privately retained by Millville Mutual Insurance Company, undertook to determine the cause of the fire. Both Shaner and Keeler believe it began when an open flame, such as a match, lighter, or candle, ignited the living room chair. After eliminating all other causes, Shaner and Keeler concluded it was three year old Jared Klemka who had set the fire.3

At his, deposition, Shaner stated that he brought the boy back to the burned house on September 9, 1993, two days after the fire, and had the following exchange with him:

[M]y question was, I believe, how did you set the fire or did you set the fire, and he lit the lighter that I had handed him and went towards the chair ... and goes poof and I said did you set the fire, did you set the chair on fire with the lighter and I recall he nodded. I don’t recall whether he said yes. I recall him nodding. Then he turned around directly and there was a piece of charred, I believe it was a chair or a stair rail. He was there — kept this lighter lit was trying to ignite that ....

(Shaner 11/19/96 Dep. at 105-106). Lyle Keeler was also present and observed Jared’s behavior. Both Shaner and Keeler concede that they would be unable to deter[505]*505mine the cause of the fire without relying on this interaction with Jared.

On May 30, 1996, Judge Rendell held a hearing on plaintiffs’ motion for a protective order regarding Jared’s deposition. During that hearing, both plaintiffs and defendant acknowledged that Jared was incompetent to testify because of his age. All parties have agreed that Judge Rendell ruled Jared incompetent to testify, and they do not contest that ruling here.4

Defendant contends that plaintiffs’ experts cannot rely on Jared’s statements on September 9, 1993 because they are unreliable.5 At that time Jared was only 3 years and 3 months old. If defendant is correct, plaintiffs cannot make out a case to go to the jury, and defendant is entitled to summary judgment.

Generally, everyone is presumed to be a competent witness, including young children. See Fed.R.Evid. 601; United States v. Rouse, 111 F.3d 561, n. 3 (8th Cir.1997). When determining competency of a child, the court considers the “capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.” Wheeler v. United States, 159 U.S. 523-24, 16 S.Ct. 93, 40 L.Ed. 244 (1895). We need not make this analysis here because all parties have conceded his incompetence. Thus, plaintiffs agree that Jared is unable to differentiate truth from falsehood or to appreciate the consequences of being untruthful to the court.

We recognize nonetheless that Jared’s incompetency does not automatically preclude the admissibility of his statements. For example, in sexual abuse cases courts often admit very young children’s res gestae statements because the hearsay exception for excited utterances reflects their trustworthiness. See Fed.R.Evid. 803(2); See also, Rouse, 111 F.3d at 569-70; United States v. Farley, 992 F.2d 1122, 1126 (10th Cir.1993); Morgan v. Foretich, 846 F.2d 941, 946 (4th Cir.1988). The same holds true for statements made by young children for the purposes of medical treatment. Those statements are admissible under Federal Rule of Evidence 803(4). See, e.g., Farley, 992 F.2d at 1125; Morgan, 846 F.2d at 949. In contrast, there is no rule allowing the introduction into evidence of hearsay statements made to fire investigators several days after the incident in question. Jared’s out of court actions and words are not deemed reliable within any established hearsay exception under Rule 803 or Rule 804 of the Federal Rules of Evidence.

Regardless of any established hearsay exception under these two rules, plaintiffs maintain that Jared’s September 9,1993 statements are reliable evidence on which the experts may predicate their opinions of the cause and origin of the fire.

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176 F.R.D. 502, 48 Fed. R. Serv. 1318, 1997 U.S. Dist. LEXIS 20897, 1997 WL 812517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minersville-safe-deposit-bank-trust-co-v-bic-corp-paed-1997.