                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-1998

Dressler v. Busch Ent Corp
Precedential or Non-Precedential:

Docket 96-2067




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Recommended Citation
"Dressler v. Busch Ent Corp" (1998). 1998 Decisions. Paper 104.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/104


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Filed May 11, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-2067

OLGA DRESSLER,
       Appellant

v.

BUSCH ENTERTAINMENT CORPORATION, D/B/A
SESAME PLACE; SESAME PLACE, A FICTITIOUS NAME
REGISTERED BY BUSCH ENTERTAINMENT
CORPORATION D/B/A/ SESAME PLACE; SESAME
PLACE; BUSCH ENTERTAINMENT CORPORATION, A
DIVISION OF ANHEUSER BUSCH, T/A SESAME PLACE;
BUSCH ENTERTAINMENT CORPORATION; CTW PARKS,
INC.; ANHEUSER-BUSCH, INCORPORATED,
       Appellees

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
(Civil No. 95-cv-05274)

Argued: September 22, 1997

Before: Becker, Scirica, and McKee, Circuit Judges

(Filed May 11, 1998)
       Anne E. Pedersen (Argued)
       Sheller, Ludwig & Badey
       1528 Walnut Street, 3rd Floor
       Philadelphia, PA 19102

        Attorney for Appellant

       Charles W. Craven (Argued)
       Marshall, Dennehey, Warner,
        Coleman & Goggin
       1845 Walnut Street
       Philadelphia, PA 19103

        Attorney for Appellees

OPINION OF THE COURT

McKee, Circuit Judge.

Olga Dressler appeals from the judgment of the district
court in favor of defendant, Busch Entertainment Corp.
Dressler sued Busch for injuries to her back that she
maintains she sustained during a fall at an amusement
theme park owned by Busch. She alleges that the trial
court erred in instructing the jury, and in limiting her
expert witness' testimony. For the reasons that follow, we
agree that the trial court's jury instructions were erroneous,
and will reverse the judgment and order of the district court
and remand for a new trial.1

I.

On August 25, 1993, Olga Dressler and her son, Jason,
visited Sesame Place, an amusement park in Langhorne,
Pennsylvania that is owned by Busch Entertainment
Corporation. Dressler purportedly injured her back as she
_________________________________________________________________

1. Since we are granting a new trial, we need not address Dressler's
assertions of error based upon the district court's restriction of her
expert witness. Upon retrial, the issues of surprise and prejudice that
are at the heart of the parties' arguments on that issue on appeal will be
moot.

                                 2
fell going down a step leading into a shallow pool that was
part of an attraction known as the "Rubber Ducky Rapids."
Thereafter, she underwent lumbar disc surgery in an effort
to correct her back injury, and alleviate her pain. Dressler
is a registered nurse, and claims that she is now unable to
perform the duties of her profession because of back pain.

Dressler filed suit in the United States District Court for
the Eastern District of Pennsylvania on August 17, 1995 to
recover damages for the injury that she claims resulted
from the fall. The matter was thereafter referred to a
magistrate judge for trial. See 28 U.S.C. S 636(c).

Dressler maintained that she slipped and fell because she
did not see a downward sloping step which was under
water and painted blue -- the same color as the rest of the
pool. At trial, Dressler testified that when she slipped and
fell, her "left leg flew up," App. at 97, her back made "a very
loud cracking noise" and she "could hear people gasping" at
the sight of her. App. at 93-94. Mary Bellantoni, Dressler's
friend, was the only eyewitness to the accident. She
corroborated Dressler's testimony regarding a fall and
further testified that Dressler was "in shock" and "crying
hysterically" afterwards. App. at 307.

Dressler and Busch both presented expert testimony
regarding the condition and design of the attraction,
including the steps where Dressler fell. At the close of the
evidence, Dressler requested that the trial court give the
following jury instruction based upon a belief that the
defense expert's testimony regarding the painting of the
step was contradictory and contained willful falsifications:

       If you decide that a witness has deliberately falsified
       his testimony on a significatn [sic] point, you should
       take this into consideration in deciding whether or not
       to believe the rest of his testimony; and you may refuse
       to believe the rest of his testimony, but you are not
       required to do so.

App. at 35. See Pennsylvania Bar Institute, Pennsylvania
Suggested Standard Jury Instructions (Civ.) 5.05 (1981). The
trial court refused to give the requested instruction, and
instead used different language to explain how to assess
testimony. Since the language that the court used is at the

                               3
heart of this appeal, we quote the relevant portion of the
court's charge at length:

       [Y]ou must decide which testimony to believe and
       which testimony not to believe . . . . There are a number
       of factors you may take into account . . . including the
       following.

       One, the witness' opportunity to observe the events he
       described . . . .
       Two, the witness' intelligence and memory. Three, the
       witness' manner while testifying. Four, whether the
       witness has any interest in the outcome of this case or
       any bias or prejudice concerning any party or any
       matter involved in the case. And five, the
       reasonableness of the witness' testimony considered in
       light of all of the evidence in the case.

       Again, ask yourselves if the witness' testimony makes
       sense to you . . . . Now if you find that a witness'
       testimony is contradicted by what the witness has said
       or done at another time, or by the testimony of other
       witnesses, you may disbelieve all or any part of that
       witness' testimony.

       But in deciding whether or not to believe him or her,
       keep this in mind, people sometimes forget things. A
       contradiction may be an innocent lapse of memory or
       it may be an intentional falsehood. Consider, therefore,
       whether it has to do with an important fact or only a
       small detail. Different people observing an event may
       remember it differently and, therefore, testify about it
       differently.

       You may consider the factors I have discussed in
       deciding how much weight to give to the testimony. It
       is for you to say what weight you will give to the
       testimony of any and all witnesses. If you believe that
       any witness has willfully sworn falsely to any material
       fact of this case or has willfully exaggerated any
       evidence in this case you are at liberty to disbelieve the
       testimony of that witness in whole or in part and
       believe it in part or disbelieve it in part, taking in to
       consideration all of the facts and circumstance of the
       case.

                                4
App. at 696-98 (emphasis added). Dressler promptly
objected, arguing that the court's phrasing of the
instruction improperly told the jury that it could disbelieve
the testimony of a witness it believed "willfully exaggerated"
any evidence (emphasis added). This, Dressler contended,
was contrary to the standard instruction that she had
submitted. App. at 714. The court overruled Dressler's
objection and, following deliberations, the jury returned a
verdict in favor of defendant Busch.

II.

Dressler's disagreement with the trial court's instruction
is twofold. She argues 1) that the court erroneous ly
included willful exaggeration in its charge on willful
falsification; and 2) that the court did not limit its willful
exaggeration charge to material evidence, but, instead,
allowed the jury to reject all of a witness's testimony based
upon any exaggeration, even if immaterial to the issues in
the suit.

Our review of a trial court's jury instructions is plenary.
Abrams v. Lightolier, Inc., 50 F.3d 1204, 1212 (3d Cir.
1995). When we assess jury instructions we must look at
the totality of the charge given to the jury, not merely a
particular paragraph or sentence. See In re Braen, 900 F.2d
621, 626 (3d Cir. 1990) (citing United States v. Piccolo, 835
F.2d 517, 520 (3d Cir. 1987)). "We review jury instructions
to determine whether, if taken as a whole, they properly
apprised the jury of the issues and the applicable law." Tigg
Corp. v. Dow Corning, Corp., 962 F.2d 1119, 1123 (3d Cir.
1992) (citing Gutzan v. Altair Airlines, Inc., 766 F.2d 135,
138 (3d Cir. 1985)). "`The trial court should be reversed
only if the instruction was capable of confusing and thereby
misleading the jury."' United States v. Rockwell, 781 F.2d
985, 991 (3d Cir. 1986) (quoting United States v. Fischbach
and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984)).

Busch argues that the totality of the portion of the charge
set forth above properly informed the jury how to evaluate
evidence. Busch cites our decision in Tigg to support its
argument that the broad discretion that we afford trial
courts in wording jury instructions requires us to defer to

                               5
the court's choice of language here. Appellee's Br. at 23;
Tigg, 962 F.2d at 1123-24.

In Tigg, plaintiff corporation sued the defendant
corporation alleging breach of a requirements contract for
an industrial product that Tigg was to supply to defendant.
The jury returned a verdict for defendant, and plaintiff
appealed alleging numerous errors in the court's jury
instructions. We reviewed the court's charge to determine if
it properly submitted the issues to the jury, and properly
explained the legal principles that would guide the jury's
analysis of the evidence. We reversed the judgment as to
damages because the court's charge gave the jury the
wrong test to use in determining damages. Here, despite
Busch's argument to the contrary, the court's instructions
gave the jury the wrong test to apply in deciding if a
witness' testimony should be rejected in whole or in part.

The terms "falsify" and "exaggerate" are not terms of art,
consequently, their ordinary and plain meanings are
sufficient to inform the jury. Webster's defines "falsify" as:
"to engage in misrepresentation or distortion." Webster's
Third New International Dictionary 820 (16th ed. 1981).
Accordingly, "falsify" suggests an intent to deceive or
mislead. On the other hand, "exaggerate" is defined as: "to
enlarge beyond bounds or the truth." Id. at 790.
Accordingly, the term includes an exclamation that
overstates a fact or occurrence because of the excitement of
the moment rather than bad faith. Dressler suggests that
that is exactly what may have happened here. She argues
that the excitement of the event may have caused both her
and her eyewitness, Mary Bellantoni, to overstate what
occurred. Dressler argues that the jury should not have
been authorized to reject the totality of either her and
Bellantoni's or any other witness' testimony based upon
such an exaggeration, unless the exaggeration concerned
testimony that was material to issues of liability or
damages.

Thus, testimony such as Bellantoni's statement that
Dressler went into shock or Dressler's statement that she
heard a "loud crack" did not justify rejecting all that either
witness said because that testimony, even if exaggerated,
was not relevant to the alleged negligent design of the steps

                               6
where Dressler fell. Busch, on the other hand, attempts to
minimize any problem with the phrasing of the charge,
arguing that the charge applied to its witnesses as well as
Dressler's. Busch suggests that, since both sides may have
exaggerated, Dressler cannot show any prejudice. Appellee's
Br. at 24. However, that is not the point. When the jury is
not informed of the test to apply to testimony, we cannot
presume an absence of prejudice. Connecticut Mutual Life
Insurance Co. v. Wyman, 718 F.2d 63, 64 (3d Cir. 1983).

Dressler argues that the standard jury charge of
numerous jurisdictions that include what is known as the
falsus in uno, falsus in omnibus charge include an element
of bad faith and materiality. Appellant's Br. at 11-12. The
falsus in omnibus instruction must clearly state that the
evidence in question must be material, "although . . . the
word `material' need not be included if the essential
meaning is conveyed by equivalent language." (footnote
omitted) 4 A.L.R. 2d 1077, S 10. As noted above, here, the
court told the jury:

        If you believe that any witness has willfully sworn
        falsely to any material fact of this case or willfully
        exaggerated any evidence in this case you are at liberty
        to disbelieve the testimony of that witness in whole or
        in part and believe it in part or disbelieve it in part,
        taking into consideration all of the facts and
        circumstance of the case.

App. at 697-98. Thus, the jury could disbelieve a witness if
it concluded that a witness deliberately testified falsely as
to a "material fact". There is nothing wrong with this part
of the equation as it is consistent with the longstanding
principles of jury deliberation.2 However, the jury was also
_________________________________________________________________

2. In United States v. Rockwell, 781 F.2d 985, 988 (3d Cir. 1986), we
concluded that the trial court's instruction "encroached upon the
prerogative of the jury to independently assess the credibility of
witnesses," Id. at 991, when the court issued the standard falsus in
omnibus instruction and then followed it with an instruction on collateral
evidence. The court stated:

        If you find that any witness testified falsely about any material
fact,
        you may disregard all of his testimony, or you may accept such

                                7
told that it could disbelieve a witness if the witness
exaggerated about any evidence. We have never held that
an exaggeration, even if willful, regarding something that is
immaterial to a jury's deliberation, could justify allowing a
jury to reject the totality of a witness' testimony, nor has
Busch provided us with any authority from any other
jurisdiction that would support such a sweeping principle
of law.

Busch attempts to seize upon Dressler's citation to
Hawaii's Civil Jury Instruction No. 5.3 to argue this novel
principle. See Appellee's Br. at 22, n.4. Busch argues:

       the model jury instructions from Hawaii, cited by
       plaintiff . . . are almost identical to those given by the
       trial judge:

       You may reject the testimony of a witness if youfind
       . . . that: 1) the witness intentionally testified falsely
       . . . about any important fact; or 2) the witness
_________________________________________________________________

       parts of it as you wish to accept and excluded such parts of it as
       you wish to exclude . . . . It is not necessary in deciding this
case to
       decide the issue of credibility between Mr. Foster and Mr. Weber.
       That issue is collateral to the main issue here.

Id. at 988. We thought that this instruction asked "the jury to reject or
accept in whole or in part the testimony of a witness only if the witness
had lied on a material issue. If a witness had not testified falsely about
a material issue, the jury may have inferred that it was bound to accept
the whole of the witness' testimony." Id. at 991. Further, we recalled our
past approval of Professor Wigmore's words that "a person who would lie
upon a collateral point is perhaps likely to be a more determined liar
than one who dares it only upon a material point." Id. (quoting United
States v. Rutkin, 189 F.2d 431, 439 (3d Cir. 1951) (internal citation
omitted).

We consider Rockwell and Professor Wigmore's sage remarks, however,
inapposite to our discussion on willful exaggeration. Since, as has
previously been stated, "to exaggerate" is not the same as "to falsify" we
do not think that Rockwell's admonition about the court's charge as it
relates to willful falsification can be commuted to willful exaggeration.
Indeed, since the act of exaggerating does not require bad faith, a jury
should not necessarily apply the same standard to a witness who
exaggerates as to one who falsifies, if the testimony is irrelevant.

                               8
       intentionally exaggerated . . . an important fact . . . in
       order to deceive or mislead you.

Id. (internal quotation marks omitted) (emphasis added).
However, the portions of Hawaii's instruction that we have
underlined above clearly demonstrate the weakness in
Busch's position. Far from being "almost identical" to the
charge the district court gave here, the emphasized portions
of the instruction are quite different. That difference
substantially undermines Busch's position. A jury in
Hawaii may disregard a witness who intentionally falsifies
an important fact or who intentionally exaggerates an
important fact. Clearly, a fact is only "important" if it is
material. Here, the jury was told it could not reject the
testimony of a witness who intentionally falsified testimony
unless the falsification went to a material fact. However, the
jury was allowed to reject the testimony of a witness who
willfully exaggerated any fact no matter how immaterial it
may have been.

Moreover, that error was not harmless. There were no
witnesses to Dressler's purported fall other than Bellantoni
and Dressler herself, both of whom testified in a manner
that may have been considered somewhat exaggerated. In
addition, no report of the accident was filed, as Dressler
testified that she could not find any employee to assist her
after her fall. Furthermore, Busch presented the testimony
of an expert witness who testified that Dressler could not
have slipped on the steps and fallen backward facing the
pool as she testified. Thus, jurors had to decide whether or
not they believed that Dressler had sustained her burden of
establishing that she fell at defendant's amusement park in
the first place before deciding any issues of negligence or
liability. We cannot ignore the possibility that the jury may
have improperly rejected the only testimony that could have
established that Dressler fell.

Nor, are we persuaded to the contrary by Busch's
reliance upon the rule that we must look at a charge in its
entirety. Busch argues that, even if the challenged portion
of the charge is problematic, the charge overall correctly
informed the jurors of how to assess testimony, and when
they could reject it. See Appellee's Br. at 20. We agree that
much of what the court instructed, as set forth above, is a

                               9
correct statement of the law and was properly included in
the judge's charge. However, we cannot agree that the
failure to inform the jury that an exaggeration must be
material was remedied by the remainder of the charge.
Although the court's instructions are fairly exhaustive and
largely correct, we cannot cast a blind eye on the court's
clear misstatement regarding willful exaggeration. More
importantly, we cannot expect the jury to do so. We cannot
assume that the jury will have the wherewithal to heed that
part of the instruction that is accurate and disregard that
which is not. Rather, we must assume that if the jurors are
provided instructions that are partly flawed they may well
choose the flawed part to inform their duties asfinders of
fact. Connecticut Mutual, 718 F.2d at 64. ("If the jury was
misled as to the law on a material point, `we cannot
presume that the jury applied the appropriate standard in
deciding [an issue]' ").

Similarly, the deference that we give to the language trial
courts use in charging a jury does not further Busch's
position. The problem here is not, as Busch argues, the
court's exercise of discretion to express the necessary
principles and concepts in the language it deems most
appropriate. Rather, the problem here is that the language
the court did use allowed the jury to reject the testimony of
a witness for reasons that may have been immaterial to a
proper evaluation of the evidence. Deference to the
language of a jury charge does not immunize jury
instructions when they fail to advise, or misadvise, a jury of
concepts it needs to know to properly discharge its duties.

Thus, we hold that the district court erred in allowing
jurors to reject part or all of a witness' testimony merely
because of a willful exaggeration of a circumstance that was
not material to Busch's negligence, or any damages
Dressler sustained.

III.

For the foregoing reasons, we reverse the judgment and
order of the district court and remand for a new trial.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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