The Honorable Andrew W. Bogue, United States District Judge for the District 1

of South Dakota, sitting by designation.

The Honorable Fernando J. Gaitan, United States District Judge for the Western 2

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2765

___________

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: February 12, 1998

 Filed: July 9, 1998

___________

Before McMILLIAN and LOKEN, Circuit Judges, and BOGUE, District Judge. 1

___________

McMILLIAN, Circuit Judge.

Cheryle Ann Scheerer and her husband, John Scheerer, (the Scheerers) appeal

from a final judgment entered in the United States District Court for the Western 2
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District of Missouri, in favor of Hardee’s Food Systems, Inc. (Hardee’s), following a

second trial in their action for damages resulting from injuries sustained by Mrs.

Scheerer when she slipped and fell in the parking lot of a Hardee’s restaurant in Lee’s

Summit, Missouri. This is the third time this case has come before us. We previously

reversed the district court’s grant of summary judgment for Hardee’s, Scheerer v.

Hardee’s Food Systems, 16 F.3d 272 (8 Cir. 1994) (Scheerer I) (reversing and

th

remanding for trial), and thereafter reversed a judgment for Hardee’s following the first

jury trial, id., 92 F.3d 702 (8 Cir. 1996) (Scheerer II) (reversing and remanding for a th

new trial). At the second trial, the jury returned a verdict for Hardee’s upon assigning

0% fault to Hardee’s and 0% fault to Mrs. Scheerer. In the present appeal, the

Scheerers argue that the district court (1) erred in admitting certain testimonial evidence

related to the subject matter of an inadmissible document, (2) erred in instructing the

jury, and (3) abused its discretion in allowing cross-examination and closing arguments

which tended to impugn the Scheerers’ counsel. Upon careful review, we now affirm.

Jurisdiction

This case was removed from state court to federal district court pursuant to 28

U.S.C. § 1441. Jurisdiction in the district court was proper based upon 28 U.S.C.

§ 1332. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a), and we

have jurisdiction over the present appeal pursuant to 28 U.S.C. § 1291.

Discussion

In Scheerer II, we held that the district court erred at the first trial in admitting

into evidence as a business report an incident report prepared in anticipation of

litigation by a non-witness employee of Hardee’s. 92 F.3d at 705-07. The incident

report contained a statement attributed to a “friend” of Mrs. Scheerer that the cause

of the accident was Mrs. Scheerer’s “slick shoes.” Id. at 705. Prior to the second trial,

the district court entered an order precluding Hardee’s from mentioning the incident
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report at any time before or during the trial, while in the presence of the jury or

potential jurors, without prior permission from the district court. At trial, counsel for

Hardee’s cross-examined the “friend,” Mrs. Fann, about her observations while

assisting Mrs. Scheerer at the time of the accident. Counsel asked the following

question: “And you looked around and you said it must have been your slick shoes,

didn’t you?” Appellants’ Appendix, Vol. 2, at 289 (trial transcript). Over the objection

of counsel for the Scheerers, the district court allowed the question and admitted Mrs.

Fann’s answer, in which she admitted making the “slick shoes” comment. It is

undisputed that the incident report was not mentioned at the second trial. Thus, all that

is at issue in this appeal is Mrs. Fann’s testimony about her own contemporaneous

“slick shoes” comment (which had been recorded in the inadmissible report). 

The Scheerers argue that the district court erred in permitting Mrs. Fann to

answer the “slick shoes” question. According to the Scheerers, “Hardee’s managed

to get through the ‘back door’ (cross-examining Mrs. Fann about her purported

conclusions about what caused the slip and fall) what it could not get in through the

‘front door’ (admission of the incident report).” Id. at 13. The Scheerers apparently

do not dispute the propositions that the hearsay rule allows a witness to testify about

his or her own prior statements, Fed. R. Evid. 801(c), or that an attorney ordinarily may

ask on cross-examination whether the witness previously made a particular statement

under oath, Fed. R. Evid. 613. They argue, however, that – not only did Mrs. Fann

never actually admit at the first trial that she had made the “slick shoes” comment – but

also that there was no evidence that she had ever actually looked at the soles of Mrs.

Scheerer’s shoes or personally knew about them. Therefore, they contend, Mrs. Fann

should not have been “forced to testify as to her opinion on the ultimate issue in this

case – the cause of Mrs. Scheerer’s slip and fall,” because it violated Fed. R. Evid.
Rule 701 provides: 3

If the witness is not testifying as an expert, the witness’ testimony

in the form of opinions or inferences is limited to those opinions or

inferences which are (a) rationally based on the perception of the witness

and (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.

Rule 602 provides in relevant part: 4

A witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has personal knowledge of

the matter. Evidence to prove personal knowledge may, but need not,

consist of the witness’ own testimony.

Mrs. Fann testified at the first trial as follows. 5

Question: “Were you the one, Miss Fann, that decided or stated after she

fell that it must have been her slick shoes?” 

Answer: “That was the conclusion I made, the comment, the fact that she

had on black patent leather shoes.”

Appellants’ Appendix, Vol. 1, at 102 (trial transcript). 

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701 and Fed. R. Evid. 602. Brief for Appellants at 15-25. 3 4

To begin, although not necessarily required under Fed. R. Evid. 613, the fact of

the matter is that Mrs. Fann did essentially testify at the first trial that she had made the

“slick shoes” comment. More importantly, Mrs. Fann’s testimony regarding her own 5

observations at the time of the accident, which Hardee’s was able to elicit from her on

cross-examination, was relevant to rebut through reasonable inference the Scheerers’

evidence suggesting that Mrs. Scheerer slipped because of water, oil, or degreaser on
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the parking lot. See Fed. R. Evid. 401. Because Mrs. Fann’s contemporaneous

statement was rationally based on her own first-hand perceptions and reasonably would

have aided the jury’s understanding of a fact in issue (i.e., whether there was water, oil,

or degreaser on the parking lot), it was not inadmissible under Fed. R. Evid. 602 or

Fed. R. Evid. 701. Furthermore, because Mrs. Fann’s contemporaneous statement of

opinion was “otherwise admissible,” it was not objectionable merely because it

embraced an ultimate issue to be decided by the trier of fact. See Fed. R. Evid. 704(a).

We next turn to the Scheerers’ claims of instructional error at the second trial.

In Scheerer II, we anticipated that some of the instructional issues raised in that appeal

would recur following our remand and thus addressed them at that time. We held,

among other things, that the district court did not err in instructing the jury on the issues

of whether an “open and obvious” danger existed in the parking lot or whether Mrs.

Scheerer failed to keep a proper lookout and therefore may be comparatively at fault.

92 F.3d at 709-10. In the present appeal, the Scheerers again argue that the district

court committed reversible error in giving the same “open and obvious” instruction, the

same “proper lookout” instruction, and the same comparative fault instruction.

Alternatively, the Scheerers argue that the district court erred by giving those

instructions together because they are logically inconsistent. The Scheerers further

argue that it was reversible error for the district court to use, in Instruction No. 10, the

word “accident” instead of “incident” because “accident” implies a lack of any fault,

whereas “incident” does not. See Instruction No. 10 (“The mere fact that an accident

happened, standing alone, does not permit the jury to draw the inference that the

accident was caused by anyone’s negligence.”) (set forth in Addendum to Brief for

Appellants at 6). 

The Scheerers have made no showing that the evidence relevant to the

challenged instructions was materially different at the second trial. We therefore hold

that the Scheerers’ legal arguments regarding Instructions Nos. 8, 9, and 12 are

foreclosed under the “law of the case” doctrine because the exact same issues were
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raised on appeal and were decided favorably to Hardee’s in Scheerer II, 92 F.3d at

709-10. See Bethea v. Levi Strauss & Co., 916 F.2d 453, 456-57 (8th Cir. 1990)

(district court is bound on remand to obey, without re-examining, court of appeals’

mandate in same case). As to Instruction No. 10, we simply find no merit to the

Scheerers’ argument. When Instruction No. 10 is read in its entirety and in conjunction

with the other jury instructions, it is simply unreasonable to construe the jury charge as

a whole as indicating that the jury should find no fault. See, e.g., Dupre v. Fru-Con

Eng’g, Inc., 112 F.3d 329, 335 (8th Cir. 1997) (when reviewing claim of instructional

error, instructions are considered in their entirety to determine whether the charge, as

a whole, fairly and adequately submits the issues to be tried). Accordingly, we hold

that the district court did not commit reversible error in its jury instructions. 

Finally, the Scheerers argue that the district court abused its discretion by

allowing defense counsel to insinuate, in cross-examination of the Scheerers’ witnesses

and in closing argument, that the Scheerers’ counsel may have suborned perjury or

encouraged fabrication. In response, Hardee’s maintains that defense counsel did

nothing wrong in highlighting, for example, the significant changes over time in the

testimony given by Mrs. Scheerer and the Scheerers’ witnesses and in pointing out

logical inferences to be drawn therefrom. 

Notwithstanding the unflattering light that was shed upon the Scheerers’

attorney, we hold that it was within the district court’s discretion to permit the

questions and arguments to which the Scheerers now object because they addressed

matters concerning the credibility of witnesses. Moreover, the questions and arguments

by lawyers are not evidence, and we assume the jury was so instructed. Finally, the

arguments and inferences raised by counsel for Hardee’s were certainly matters upon

which counsel for the Scheerers could have responded through redirect examination

and rebuttal closing argument. Thus, upon careful review, we hold that the district

court did not abuse its discretion in allowing cross-examination and closing arguments

which tended to impugn the Scheerers’ counsel.
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Conclusion

For the reasons stated, the judgment of the district court is affirmed. In addition,

the motions filed by Hardee’s to dismiss the present appeal as frivolous and for

sanctions are denied.

A true copy.

Attest:

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