Negligent Entrustment


Action against D Warehouse Company for negligence. In June 1981 Mrs. P prepared to sell her Cambridge house and move to Palo Alto. She decided to sell some of her household furnishings, take some with her, and store the rest. Mrs. P's maid, M, is put in charge of selecting things to be sold at a garage sale and packing what is not sold for storage. After the garage sale M packs the unsold items in sealed boxes and makes a handwritten list of the contents of each box. The boxes are then delivered to the D Warehouse Company for storage. Ten years later Mrs. P returns to Cambridge, claims the boxes, and is told they were destroyed by termites. At trial the only issue is the contents of the boxes. Compare these methods of proof:

(1) Mrs. P takes the stand and testifies to her 1981 instructions to M, her employee, and authenticates the handwriting on the lists as M's. The lists are then offered in evidence. D objects.

(2) M takes the stand and testifies to the instructions she received in 1981 from Mrs. P, her employer, and how she carried out those instructions. When asked to specify the contents of the boxes, however, M says that she cannot remember what was put into the boxes. P's attorney then shows M the lists. M studies the lists, testifies that she now remembers the contents of the boxes, and proceeds to specify the contents. D objects and moves to strike.

(3) The same as in (2) except that M testifies that even after looking at the lists she cannot remember what she put into the boxes. However, she does remember making the lists when she did the packing and that they were made accurately. The lists are then offered in evidence. D objects.

(4) Suppose that instead of M's doing all the packing alone, Mrs. P helped her by packing each item in the boxes, stating orally what each item was and in which box it was put while M recorded the items on the lists. However, M, being fully occupied with making the lists, did not observe Mrs. P pack the items. At trial, Mrs. P and M testify to the above. Mrs. P cannot remember the items packed but does remember making the oral statements, which were accurate. M cannot remember what Mrs. P said but does remember taking down her statements and that her notes were accurate. M identifies the lists, and P's attorney then reads the lists. D objects.

Which of these methods of proof will work? What reasons underlie the rules governing the use of past recollection recorded and refreshing recollection? What are the elements and procedures of each method? Compare Rules 803(5) and 612.

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