1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-11-1998

Dressler v. Busch Ent Corp

Precedential or Non-Precedential:

Docket 96-2067

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Dressler v. Busch Ent Corp" (1998). 1998 Decisions. Paper 104.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/104
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. 

 10 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 11