Raino v. Supermarkets General Corp.

609 A.2d 1047, 28 Conn. App. 56, 1992 Conn. App. LEXIS 241
CourtConnecticut Appellate Court
DecidedJune 23, 1992
Docket9750
StatusPublished
Cited by6 cases

This text of 609 A.2d 1047 (Raino v. Supermarkets General Corp.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raino v. Supermarkets General Corp., 609 A.2d 1047, 28 Conn. App. 56, 1992 Conn. App. LEXIS 241 (Colo. Ct. App. 1992).

Opinion

Cretella, J.

The plaintiffs1 appeal from a judgment for the defendant, rendered after a jury trial, in an action for personal injuries and loss of consortium. The plaintiffs claim that the trial court improperly refused to admit into evidence the handwritten notes of the defendant’s night manager that were made soon after he learned of William Raino’s injury in the defendant’s store. The plaintiffs claim that these notes, although constituting hearsay, should have been admitted into evidence under one of several exceptions to the hearsay rule. We affirm the judgment of the trial court.

The plaintiffs’ revised complaint alleged that William Raino was a customer at the defendant’s Pathmark store in Bridgeport on August 30, 1987, when he fell as a result of a Pathmark employee’s striking his cane with a broom. During the plaintiffs’ case-in-chief, an incident investigation report prepared by Pathmark regarding the injury claim was introduced into evidence without objection as a business record. The incident report gave the customer’s description of the incident, listed witnesses, and contained other relevant information.2

[58]*58Kelly Alleyne, a cashier employed by the defendant at the time of the incident was called by the defendant as a witness. During the cross-examination of Alleyne, the plaintiffs sought to introduce into evidence the handwritten notes of James Fratantonio, the defendant’s night manager at the time of the incident. Alleyne could not identify the notes, but the plaintiffs offered the notes as an admission. The defendant’s objection to the offer of the notes was sustained by the court. The other cashier, Sandy Rishel, was not called by either party as a witness.

Later in the trial, during the plaintiffs’ cross-examination of Fratantonio, the plaintiffs again sought to introduce the same handwritten notes into evidence. Fratantonio had testified that William Raino telephoned him to report the incident about an hour after it had occurred. He then spoke to a cashier about the incident and made notes on a piece of scratch paper. Although Fratantonio testified that his notes reflected what he learned regarding the incident and that he relayed the information in the notes to the general store manager, Peter Mazurski, he also testified that it was not part of his business to keep notes of this nature and that the notes were not kept by him or Pathmark in the ordinary course of their business. Fratantonio stated that the incident report prepared by Mazurski and already admitted into evidence constituted the business record regularly used by Pathmark to preserve accident information.

[59]*59The plaintiffs claimed that the notes should be admitted into evidence under an exception to the hearsay rule as an admission, as a declaration against interest, as a business record, and under the catchall exception. The defendant again objected to the offer of the notes on any of these grounds. The objection was sustained by the trial court. The plaintiffs did not attempt to offer the notes into evidence during the remainder of the trial.

An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay. State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991); State v. Rochette, 25 Conn. App. 298, 303, 594 A.2d 1006 (1991). On appeal, the plaintiffs claim that Fratantonio’s notes should have been admitted into evidence under an exception to the hearsay rule (1) as a business record, (2) as an admission by adoption, (3) as Fratantonio’s past recollection recorded, (4) as a prior inconsistent statement, and (5) under the catchall exception to the hearsay rule. We will not review the plaintiffs’ third and fourth claims because neither of these grounds for the admission of the notes was raised in the trial court. O & G Industries, Inc. v. Mizzoni, 23 Conn. App. 19, 23, 578 A.2d 672 (1990); DiSorbo v. Grand Associates One Limited Partnership, 8 Conn. App. 203, 206-209, 512 A.2d 940 (1986). We now address the plaintiffs’ remaining claims, which were properly preserved for appeal.

Business Record Exception

The plaintiffs claim that Fratantonio’s notes were such an integral part of the Pathmark incident investigation report, which did qualify as a business record under General Statutes § 52-180,3 that the notes, too, [60]*60must be admitted under the business record exception to the hearsay rule. It is a correct statement of law that preliminary or investigative notes used in the preparation of an admissible business record can be a business record under § 52-180,4 but not every statement contained in a document qualifying as a business record is necessarily admissible. To be admissible under § 52-180, the contents of a business record must be based on the entrant’s own observations or on information transmitted to him by an observer whose business duty it was to transmit it to him. Statements obtained from volunteers are not admissible, although included in a business record, because it is the duty to report in a business context that provides the reliability to justify this hearsay exception. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. In re Barbara J., 215 Conn. 31, 40, 574 A.2d 203 (1990); D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953).

[61]*61The admissibility of the notes as a business record fails, not because the notes do not qualify as a business record, but because a proper foundation was not laid. It was not established that the information contained in the notes was transmitted to Fratantonio by an observer whose duty it was to transmit such observations. See State v. Palozie, 165 Conn. 288, 295-96, 334 A.2d 468 (1973). Fratantonio testified that he spoke to the plaintiff and a cashier in preparing his notes. He could not recall who the cashier was; he did not know whether the cashier had witnessed the accident; the notes also contain references to other individuals whose identity was not established; the notes contained the names of the cashiers that had not been written by him and had been crossed out. While a cashier would certainly have a duty to report accurately a worksite injury to supervisory personnel, the foundation testimony on which the plaintiff sought to establish the admissibility of Fratantonio’s notes failed to establish whether the information, in fact, came from the cashier and, if it did, whether the cashier’s information was based on personal observation or the hearsay statements of others. Statements of persons who do not have a business duty to report pertinent information, even where they are included in a business record prepared by a person who does have such a duty, are not admissible under § 52-180. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
609 A.2d 1047, 28 Conn. App. 56, 1992 Conn. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raino-v-supermarkets-general-corp-connappct-1992.