                                    ____________

                                     No. 95-1192
                                    ____________


Cheryle Ann Scheerer;                    *
John Scheerer,                           *
                                         *
                  Appellants,            *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri
Hardee's Food Systems, Inc.,             *
                                         *
                  Appellee.              *

                                    ____________

                       Submitted:    November 13, 1995

                          Filed:      August 12, 1996
                                    ____________

Before McMILLIAN and LOKEN, Circuit Judges, and DUPLANTIER,*
      District Judge.
                              ____________


McMILLIAN, Circuit Judge.




Cheryle Ann Scheerer and her husband John Scheerer appeal from a
final judgment entered in the United States District Court for the
Western District of Missouri in favor of Hardee’s Food Systems,
Inc. (Hardee’s), a North Carolina corporation, in their action to
recover damages for personal injuries sustained when Mrs. Scheerer
slipped and fell in the parking lot of a Hardee’s restaurant.                 For
reversal, the Scheerers contend that the district court erred in
(1)   admitting   an    incident      report,   (2)     instructing   the   jury,




      *The Honorable Adrian G. Duplantier, United States
      District Judge for the Eastern District of
      Louisiana, sitting by designation.
(3)   excluding   certain   expert   testimony,   (4)   allowing   certain
closing arguments, and (5) committing other trial errors.          For the




                                     -2-
reasons discussed below, we reverse the judgment and remand the
case to the district court for further proceedings consistent with
this opinion.


     This is the second appeal.    In the first appeal, this court
reversed the grant of summary judgment in favor of Hardee’s and
remanded the case for further proceedings because there were
genuine issues of material fact in dispute as to whether Hardee’s
created on its parking lot a slippery, dangerous or hazardous
condition and whether that dangerous condition was the proximate
cause of Mrs. Scheerer’s fall and injuries.     Scheerer v. Hardee’s
Food Systems, Inc., 16 F.3d 272, 275 (8th Cir. 1994).       We held
there was sufficient evidence from which a reasonable jury could
find that Hardee’s parking lot was not reasonably safe for egress,
the dangerous condition had been created by Hardee’s agent or
employees, and Hardee’s failed to exercise reasonable care to make
its parking lot reasonably safe or to warn its invitees of the
dangerous condition and risk involved.    Id.


     On the evening of June 28, 1989, the Scheerers visited the
Hardee’s restaurant.    A Hardee’s employee had watered the plants
around the restaurant shortly before the accident.    Mrs. Scheerer
had exited the restaurant and was walking across the parking lot
when she slipped and fell behind a parked car.       The Scheerers’
theory of the case was that the surface of the parking lot was
slippery due to a combination of water over oil and grease deposits
and that Hardee’s failed to warn its customers about the dangerous
condition.   Hardee’s defended on several alternative theories:   the
surface of the parking lot was dry, not wet, and Mrs. Scheerer’s
hard-soled shoes caused her to slip and fall; if there was any
dangerous condition on the parking lot due to oil or grease or
water on its surface, Hardee’s did not cause such a dangerous
condition and had no notice of it; the dangerous condition on the

                                 -3-
parking lot was open and obvious as a matter of law; or Mrs.
Scheerer had failed to keep a proper lookout.




                               -4-
        At trial the district court excluded the testimony of the
Scheerers’ expert witness, a forensic consulting engineer, who
would have testified about the coefficient of friction in relation
to asphalt surfaces, degreasers and degreaser residue and his
opinion about the cause of the accident.                       The district court
admitted    into   evidence,       over   objection,      an    “incident   report”
prepared by a Hardee’s employee that described the surface of the
parking lot as dry, not wet or oily, and included the statement
that “a friend explained [Mrs. Scheerer’s] shoes were slick.”                    The
district court refused to give the Scheerers' proposed instruction
A   which    eliminated      the    requirement      of     knowledge    and     gave
instructions on notice (No. 7), open and obvious danger (No. 14),
and proper lookout (No. 8).            The jury found no liability on the
part of Hardee’s.        The district court denied the Scheerers’ motion
for new trial and entered judgment in favor of Hardee’s.                         This
appeal followed.


        First, we consider the Scheerers’ contention that the district
court    abused    its    discretion      in    admitting      into   evidence   the
“incident report” as a business record under Fed. R. Evid. 803(6).1


     1
        Fed. R. Evid. 803(6) provides:

             The following are not excluded by the hearsay
        rule, even though the declarant is available as a
        witness:

                    . . . .

                   (6)      Records   of    regularly
             conducted activity.      A memorandum,
             report, record, or data compilation, in
             any form, of acts, events, conditions,
             opinions, or diagnoses, made at or near
             the time by, or from information
             transmitted by, a person with knowledge,
             if kept in the course of a regularly
             conducted business activity, and if it

                                          -5-
Our standard of review regarding the admissibility of evidence is
whether the district court abused its discretion, and a ruling on
admissibility will not be reversed on appeal absent a clear and
prejudicial abuse of discretion.        E.g., Hicks v. Mickelson, 835
F.2d 721, 725 (8th Cir. 1987).    The incident report was prepared by
a   non-witness   Hardee’s   employee    and   contained   not   only   a
description of the condition of the surface of the parking lot as
dry, not wet or oily, but also a statement attributed to a “friend”
of Mrs. Scheerer that the cause of the accident was Mrs. Scheerer’s
“slick shoes.”    Although the “friend” was not identified at trial,
there was an inference that the friend was a Mrs. Fran, who was a
trial witness.    (The Scheerers describe Mrs. Fran as a neighbor and
acquaintance rather than a friend.)       The author who prepared the
incident report did not testify.    The Scheerers argue that even if
the incident report was admissible as a business record, the
statement in the incident report about the shoes should have been
excluded as untrustworthy.       The Scheerers also argue that the
incident report was not admissible as a business record because it
was prepared in anticipation of litigation.


      Hardee’s argues the incident report was admissible as a
business record and was trustworthy because such reports are
routinely made at or close to the time of an incident whenever a
customer is injured or claims to have been injured.              Hardee’s
argues that it is “perfectly clear” that the friend, that is, the


           was the regular practice of that
           business   activity    to   make    the
           memorandum, report, record, or data
           compilation, all as shown by the
           testimony of the custodian or other
qualified witness, unless the source of information or the method
or circumstances of preparation indicate lack of trustworthiness.
The term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.

                                  -6-
source of the information in the incident report, was Mrs. Fran,
who, Hardee’s notes, was a trial witness.   Mrs. Fran testified that
she could not remember stating that the cause of the accident was
Mrs. Scheerer’s shoes.   Hardee’s also argues that the incident




                                -7-
report rebutted the Scheerers’ claim that the surface of the
parking lot was wet at the time of the accident.


     We hold the incident report was not admissible as a business
record under Fed. R. Evid. 803(6) because the source of the
information contained therein was never identified at trial.                         In
particular, although we agree that Mrs. Fran was probably the
“friend,”    it    is   unclear   whether    she     was    the   source   of     the
information about Mrs. Scheerer’s shoes.               In the absence of any
evidence about the source of that information, we cannot test its
reliability or trustworthiness.        E.g., Meder v. Everest & Jennings,
Inc., 637 F.2d 1182, 1187 & n.6 (8th Cir. 1981) (reference in
police report about cause of accident should have been excluded
because the author was not on the scene at the time of the
accident,    did    not    remember   whether      victim-plaintiff        made       a
statement and did not recall with whom he spoke at the scene).


     In     addition,     the   incident    report    was   inadmissible        as   a
business record under Fed. R. Evid. 803(6) because it had been
prepared in anticipation of litigation.               Even if we assume that
Mrs. Fran was the source of the information about Mrs. Scheerer’s
shoes, the incident report lacks reliability or trustworthiness




                                      -8-
because it was not made in the ordinary course of business2 but
instead with the knowledge that the incident could result in




     2
      See also Mo. Ann. Stat. § 490.660-.690 (Vernon 1952 & Supp.
1996) (Uniform Business Records as Evidence Law).       The Uniform
Business Records as Evidence Law was intended to avoid “the many
antiquated and technical rules of common law regarding the
admissibility of business records as evidence.”      Melton v. St.
Louis Pub. Serv. Co., 363 Mo. 474, 485, 251 S.W.2d 663, 669 (Mo.
1952) (banc); see Kitchen v. Wilson, 335 S.W.2d 38, 42-43 (Mo.
1960) (optometrist’s record of office examination held inadmissible
as business record when it contained statements that cervical
sympathetic ganglia were injured in car wreck); Voyles v. Columbia
Terminals Co., 239 S.W.2d 559, 562 (Mo. Ct. App. 1951) (accident
report made by trucking company after accident not record made in
usual course of business); see generally T.E. Lauer, Business
Records as Evidence in Missouri, 1964 Wash. U. L.Q. 24, 30.

                               -9-
litigation.      E.g., United States v. Blackburn, 992 F.2d 666, 670
(7th Cir.) (lensometer report prepared at behest of FBI and with
knowledge that any information it supplied would be used in ongoing
criminal investigation was not prepared and kept in ordinary course
of eyeglasses business), cert. denied, 510 U.S. 949 (1993); Picker
X-Ray Corp. v. Frerker, 405 F.2d 916, 922-23 (8th Cir. 1969)
(hospital report made by business manager after accident which he
knew could result in litigation was not used for treatment or any
other ordinary business purpose but instead with knowledge that
incident could result in litigation).                 Here, the incident report
shows    on   its    face   that    it    was    prepared     in    anticipation     of
litigation     and   not    in   the     ordinary    course    of    Hardee’s    usual
restaurant business operations.                 The directions on the incident
report form instructed the person completing the form to “[g]et
COMPLETE      information,”      “[p]hone        report   within     30    minutes   of
incident, if serious,” and “[f]orward written report same day.”
Other directions on the form noted that “[t]his form is to be used
for   reporting      all    types    of    incidents--      Premises       or   Product
Liability,     Fire,    Theft      and    Property   Damage”       and    specifically
instructed the person completing the form to distribute the white
copy “[t]o your local claims office,” the pink copy to the “Risk
Management Dept.,” and the yellow copy to the “Area Director of
Operations.”


        In light of the importance of the incident report and the
information contained therein about the condition of the surface of
the parking lot and Mrs. Scheerer’s shoes, the incident report was
extremely prejudicial and therefore its admission was reversible
error.


        Because the business record issue alone justifies reversal and
remand, we need not discuss the other issues raised on appeal.


                                          -10-
However, because the following issues may arise on remand, we
discuss them briefly.




                            -11-
     The Scheerers contend that the district court erred in giving
certain instructions to the jury.             We review jury instructions as
a whole to determine whether they fairly and adequately instruct
the jury as to the applicable substantive law.               E.g., Tioga Public
School District No. 15 v. United States Gypsum Co., 984 F.2d 915,
923-24 (8th Cir. 1993).       The district court has wide discretion in
the formulation of jury instructions.               E.g., Davis v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 906 F.2d 1206, 1212 (8th Cir.
1990).     “A    judge   is   not   required       to   give    every    proposed
instruction, nor is he or she required to accept the particular
phraseology proposed by any given litigant.”             Id.    Each element of
the instructions must have an evidentiary basis.                E.g., Wilson v.
Danuser Machine Co., 874 S.W.2d 507, 509 (Mo. Ct. App. 1994).


     The Scheerers argue the district court erred in refusing to
give their proposed instruction A which eliminated the issue of
knowledge and in giving instruction No. 7 which required the jury
to find that Hardee’s knew or should have known of the dangerous
condition as an element of liability.              The Scheerers argue that
there was no evidence that any party other than Hardee’s was
responsible for the condition of the surface of the parking lot and
therefore the jury did not have to decide whether Hardee’s knew
about the condition of the surface of the parking lot.                   Hardee’s
argues the issue of knowledge or notice of the dangerous condition
was disputed.    The Scheerers also argue the district court erred in
submitting to the jury instruction No. 14 because whether the
dangerous condition was open and obvious is a question of law which
should have been decided by the district court and not the jury.
The Scheerers     also   argue   the    district     court     erred    in   giving
instruction No. 8 about the failure to keep a proper lookout
because   that   instruction     was    essentially     a    comparative     fault
instruction and there was no evidence that Mrs. Scheerer failed to
keep a proper lookout.

                                       -12-
-13-
      Jurisdiction over this matter is founded on diversity, and,
because the district court was located in Missouri, we look to
Missouri choice of law rules to determine which body of substantive
law to apply.   E.g., Schoffman v. Central States Diversified, Inc.,
69 F.3d 215, 219 n.10 (8th Cir. 1995).         For tort (and contract)
claims, Missouri courts apply the “most significant relationship”
test found in the Restatement (Second) of Conflict of Laws § 145
(1971).   E.g., Dorman v. Emerson Electric Co., 23 F.3d 1354, 1358
(8th Cir.) (applying Missouri law), cert. denied, 115 S. Ct. 428
(1994).   “Under this test, the identity of the state having the
most significant relationship will depend upon the nature of the
cause of action and upon the particular legal issue in dispute.”
Id.


      In an action for a personal injury, the local law
      of the state where the injury occurred determines
      the rights and liabilities of the parties, unless,
      with respect to the particular issue, some other
      state has a more significant relationship . . . to
      the occurrence and the parties, in which event the
      local law of the other state will be applied.


Restatement (Second) of Conflict of Laws § 146.       “This formulation
essentially establishes a presumption that the state with the most
significant     relationship   is     the   state   where   the   injury
occurred . . . .”   Dorman v. Emerson Electric Co., 23 F.3d at 1358.
“In cases in which the injury and the conduct causing the injury
occur in the same state, the Restatement [(Second) of Conflict of
Laws] principles are easy to apply.”          Id., citing Restatement
(Second) of Conflict of Laws § 146 cmt. d (noting that, subject
only to rare exceptions, local law of state where conduct and
injury occurred will be applied).      In the present case, because the
conduct, the accident and the injury occurred in Missouri, Missouri
had the most significant relationship to the accident and the
parties, and therefore Missouri substantive law applies.

                                    -14-
-15-
     On the day of the accident the Scheerers were invitees.           “An
invitee ‘is a person who is invited to enter or remain on land for
a purpose directly or indirectly connected with business dealings
with the possessor of the land.’”         Harris v. Niehaus, 857 S.W.2d
222, 225 (Mo. 1993) (banc), citing Restatement (Second) of Torts
§ 332 (1965).     “[T]he duty of owners or occupants of lands or
buildings to invitees . . ., generally, is to use ordinary care to
have the premises in a reasonable, safe condition for use in the
manner consistent with the purpose of the invitation.”            Asher v.
Broadway-Valentine Center, Inc., 691 S.W.2d 478, 482 (Mo. Ct. App.
1985).   “[I]n a parking lot case the liability, if any, is based on
the [possessor]’s duty to the invitee to provide a reasonably safe
means of ingress and egress and . . . this duty ‘is a duty to
exercise ordinary care to keep its premises reasonably safe and to
warn of any danger which is actually known to it and which invitees
would not discover.’”      Turcol v. Shoney’s Enterprises, Inc., 640
S.W.2d 503, 505 (Mo. Ct. App. 1982).


           When the plaintiff is an invitee, a possessor
     of land is subject to liability for injuries caused
     by a condition on the land only if the possessor
     (a) knows or by the exercise of reasonable care
     would discover the condition, and should realize
     that it involves an unreasonable risk of harm to
     such invitees, and (b) should expect that they will
     not discover or realize the danger or will fail to
     protect themselves against it, and (c) fails to
     exercise reasonable care to protect them against
     the danger.


Harris   v.   Niehaus,   857   S.W.2d   at   225-26,   citing   Restatement
(Second) of Torts § 343.


     Thus, to meet the applicable standard of care a
     possessor of land must (1) exercise reasonable
     care; (2) disclose to the invitee all dangerous
     conditions which are known to the possessor and are

                                   -16-
likely not to be discovered by the invitee; and (3)
see that the premises are safe for the reception of
a visitor, or at least ascertain the condition of
the land, to give such warning that the invitee may
decide intelligently




                          -17-
     whether or not to accept the invitation, or may
     protect himself [or herself] against the danger if
     he [or she] does accept it.


Harris v. Niehaus, 857 S.W.2d at 226, citing Restatement (Second)
of Torts § 343 cmt. b.


           Under the second element of § 343, when the
     dangerous condition is so open and obvious that the
     invitee should reasonably be expected to discover
     it and realize the danger, a possessor of land does
     not breach the standard of care owed to invitees
     “unless the possessor should anticipate the harm
     despite such knowledge or obviousness.”        This
     element acknowledges that a possessor of land is
     not an absolute insurer of the well-being of its
     invitees.    As a general matter, therefore, a
     possessor’s actions do not fall below the
     applicable standard of care if the possessor fails
     to protect invitees against conditions that are
     open and obvious as a matter of law.


Harris v. Niehaus, 857 S.W.2d at 226, citing Restatement (Second)
of Torts § 343A(1).


           The duty to keep premises safe for invitees
     applies only to defects or conditions which are in
     the nature of hidden dangers, traps, snares,
     pitfalls, and the like, in that they are not known
     to the invitee, and would not be observed by [the
     invitee] in the exercise of ordinary care.      The
     invitee assumes all normal, obvious, or ordinary
     risks attendant on the use of the premises, and the
     owner or occupant is under no duty to reconstruct
     or alter the premises so as to obviate known and
     obvious dangers.


Dixon v. General Grocery Co., 293 S.W.2d 415, 418 (Mo. 1956)
(citations omitted).     Thus, “[a possessor] is under no duty to
protect an invitee who is in an equal position to protect himself
[or herself].   Where the danger is obvious or known to the invitee

                                -18-
he [or she] consents to the risk and the [possessor] owes no duty.”
Sellens v. Christman, 418 S.W.2d 6, 8 (Mo. 1967).




                               -19-
        The possessor’s liability is based upon its superior knowledge
of the dangerous condition of the premises which results in injury.
E.g., Ward v. Temple Stephens Co., 418 S.W.2d 935, 938 (Mo. 1967),
abrogated in part by Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778,
780-81 (Mo. 1989) (banc) (holding method of merchandising and
nature of article causing injury more important than length of time
dangerous article has been in area in which injury occurs); White
v. Kroger Co., 573 S.W.2d 375, 376 (Mo. Ct. App. 1978).               For that
reason, liability requires notice to the owner or possessor, either
actual or constructive, of the dangerous condition.          Ward v. Temple
Stephens Co., 418 S.W.2d at 938.            A possessor will be deemed to
have had actual notice if it is affirmatively shown that an agent
or employee of the possessor created the dangerous condition.               Id.;
Asher    v.   Broadway-Valentine     Center,   Inc.,   691   S.W.2d    at   483
(imputing to owner actual knowledge of owner’s employee as to
dangerous condition of paving and subsurface of parking lot).


        The district court should not have included notice as an
element of liability in instruction No. 7.             Here, the evidence
conclusively showed Hardee’s had actual and constructive knowledge
of the dangerous condition of the surface of the parking lot.                 A
Hardee’s employee testified about the degreaser he used the day
that Mrs. Scheerer slipped and fell, that the degreaser left a
residue on the surface of the parking lot because there was no
drainage, and that, on the day of the accident, he had watered the
plants around the restaurant and that water from the hose had run
onto    the   sidewalk   and   the   parking   lot   directly    outside    the
restaurant entrance and exit.         The employee’s actual knowledge of
the dangerous condition is imputable to Hardee’s.               Hardee’s also
had constructive knowledge of the dangerous condition because it
knew that the parking lot was located directly in front of the
restaurant entrance and exit; vehicles would drip oil and other


                                     -20-
liquids on the surface of the parking lot; the parking lot sloped
down away from the restaurant; and that there was a specific




                              -21-
company procedure for using degreasers on the surface of the
parking lot.


      The district court did not err in submitting the issue whether
the dangerous condition was open and obvious to the jury in
instruction No. 14.      Whether the challenged condition was so openly
and obviously dangerous that a reasonably prudent individual would
not   attempt   it    essentially    asks       whether   that   individual   was
contributorily negligent, which is usually a question of fact for
the jury (or the trial court as fact-finder).              See, e.g., Dixon v.
General Grocery Co., 293 S.W.2d at 419 (holding danger was not so
obvious to invitee as to relieve defendant of liability as a matter
of law); Summa v. Morgan Real Estate Co., 350 Mo. 205, 214, 165
S.W.2d 390, 393-94 (1942) (whether condition was so obvious that
plaintiff   was      bound    to   see     it   and   whether    plaintiff    was
contributorily negligent in not observing it were both questions of
fact for the jury’s consideration); Turcol v. Shoney’s Enterprises,
Inc., 640 S.W.2d at 507-08.         However, the facts and circumstances
in a particular case may be so one-sided that the trial court can
say, as a matter of law, that a dangerous condition was so open and
obvious that the plaintiff knew or should have known of the danger
and assumed the risk.        See, e.g., Harris v. Niehaus, 857 S.W.2d at
226-27 (holding as a matter of law that natural condition present
was open and obvious to all who would encounter it); Hokanson v.
Joplin Rendering Co., 509 S.W.2d 107, 110-14 (Mo. 1974) (holding
plaintiff’s detailed and thorough knowledge of conditions and
dangers put plaintiff as a matter of law in position to protect
himself equal to that of defendant); Adkins v. Sutherland Lumber
Co., 307 S.W.2d 17, 22-23 (Mo. Ct. App. 1957) (holding danger was
so open and obvious to plaintiff that as a matter of law he knew or
should have known of danger).             In the present case, the evidence
was not so one-sided and the district court did not err in


                                         -22-
submitting to the jury the issue whether the dangerous condition
was open and obvious.




                              -23-
       The district court did not err in giving instruction No. 8
about the failure to keep a proper lookout.              There was evidence to
support this instruction.           The instruction correctly required the
jury to assess a percentage of fault to Mrs. Scheerer if the jury
found she negligently failed to keep a proper lookout.               Comparative
fault compares the degree of causation flowing from the negligent
acts of the defendant, if any, to the negligent acts of the
plaintiff, if any.          See, e.g., Jones v. National Supermarkets,
Inc., 729 S.W.2d 218, 223 (Mo. Ct. App. 1987).


       The   Scheerers     also   argue     the   district   court   abused   its
discretion in excluding the testimony of their expert witness, a
forensic consulting engineer, who would have testified about the
effect of the degreaser and degreaser residue on the surface of the
parking lot and his opinion about the cause of the accident.                   We
cannot say the district court abused its discretion in deciding
that the expert’s specialized knowledge would not have assisted the
jury in assessing the dangerousness of the surface of the parking
lot.    Fed. R. Evid. 702; see, e.g., Getter v. Wal-Mart Stores,
Inc., 66 F.3d 1119, 1124 (10th Cir. 1995) (upholding exclusion of
proffered expert testimony on similar topic), cert. denied, 116
S. Ct. 1017 (1996).


        Accordingly, the judgment of the district court is reversed
and    the   case   is   remanded    to    the    district   court   for   further
proceedings consistent with this opinion.


       A true copy.

              Attest:

                         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -24-
