Assessing The Threshold For FRE 602 "Personal Knowledge"

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Ninth Circuit considers the scope of the personal knowledge requirement; in reversing grant of summary judgment for the defendant restaurant in an Americans with Disabilities Act (ADA) action suit alleging a restaurant facility failed to provide the disabled sufficient access to the establishment's resources, the Ninth Circuit remands noting that the quadriplegic declarant's sworn statement about the barriers he encountered at defendant's establishment was sufficiently based on his personal knowledge and observations as a disabled person familiar with ADA-compliant structures, in Strong v. Valdez Fine Foods, _ F.d _ (9th Cir. July 18, 2013) (No. 11–55265)

Under what circumstances does a witness have sufficient "personal knowledge" of a condition or circumstance to provide testimony? The Advisory Committee Notes for FRE 602, concerning the requirement of personal knowledge, suggest a flexible approach. According to the Note, the "foundation requirements may, of course, be furnished by the testimony of the witness himself; personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception." The Ninth Circuit recently considered this type of issue, in reversing and remanding a grant of summary judgment that had been awarded to the defendant.

In the case plaintiff Strong was a quadriplegic and had experienced trouble getting into defendant's restaurant. He sued the owner of a restaurant facility alleging discrimination under the Americans with Disabilities Act (ADA). The only issue in dispute was whether barriers at the restaurant interfered with the plaintiff's ability to use the restaurant. (For example the plaintiff alleged that disabled parking spaces at the restaurant had slopes exceeding 2% violating the ADA, as well as access aisles that also exceeded the 2% slope, and sidewalk slopes exceeding 2%.) The defendant's motion for summary judgment was granted. Essential to the district court's ruling was that the judge refused to consider the plaintiff's declaration since it was not based on personal knowledge. Without this evidence, the plaintiff had no case for the trial.

The Ninth Circuit disagreed that the evidence was not admissible. The plaintiff's allegations about the barriers was sufficient to support a finding of personal knowledge that there were barriers to the disabled. The circuit noted that the plaintiff was so disabled that he "could not himself handle[ ] the instruments used to make measurements" of the barriers. But the fact "he was present when measuring took place" and observed the measurement was sufficient. This provided a sufficient showing of the "personal knowledge for purposes of parrying defendants' push for summary judgment. He would no doubt present a more powerful case at trial if he could proffer evidence of precise measurements, but his personal observations, based on his prolonged experience with ADA-compliant (and non-compliant) access ramps, are enough to propel him past summary judgment." Strong, __ F.3d at __.

As explained by the circuit, the condition was sufficiently common that expert testimony was unnecessary, at least to make allegations that could survive to trial:

Given that so many public accommodations do comply with the ADA, it's likely that someone like [plaintiff] Strong, who daily navigates the world in a wheelchair, would be attuned to variations in the slope and spacing of his environment. Even without tools, Strong could say, based on his experience, that the slope exceeds the maximum of 2.0% or that there's “insufficient clear floor space in front of the water closet,” just as a man in a wheelchair who struggles to get out of his car can say that the width of the access aisle next to his handicap parking spot is less than the required five feet. The trier of fact may discount such personal observations, but the weight of the evidence is an issue for trial, not summary judgment.
Strong, __ F.3d at __ (citing Leadbetter v. Glaisyer, 44 F.2d 350 (9th Cir. 1930) (“Any person of average intelligence, accustomed to observing moving objects, is able to express an opinion of some value as to the rate of speed of an automobile or other moving vehicle.... The opinion might not be so accurate and reliable as that of one who had been accustomed to observe, with time piece in hand, the motion of an object of such size and momentum; but this would only go to the weight of the testimony, and not to its admissibility.” (internal quotation marks omitted)); Nelson v. City of Davis, 685 F.3d 867, 874, 881, 882 (9th Cir. 2012) (estimating distance); Young v. Illinois Cent. Gulf R.R., 618 F.2d 332, 337 (5th Cir. 1980) (abuse of discretion not to allow lay witness estimates of width of rail crossing).

To a great extent, the Strong case illustrates the difference between admissibility and weight of the evidence. The line between the two is often thin, but as Strong suggests, the line might be more tenuous where the ultimate question depends upon whether the trial court can find that there is an issue in dispute that should be tried.

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