## Facts

- Cheryle Ann Scheerer and her husband sued Hardee’s Food Systems, Inc. for injuries and derivative damages after a slip-and-fall in a restaurant parking lot on June 28, 1989.
- Shortly before the fall, a Hardee’s employee had watered plants near the restaurant.
- Mrs. Scheerer slipped and fell while walking across the parking lot behind a parked car.
- The Scheerers claimed the lot was slippery from water mixed with oil and grease and that Hardee’s failed to warn of the hazard.
- Hardee’s disputed causation and fault, asserting the lot was dry and that Mrs. Scheerer slipped due to hard-soled shoes; alternatively, Hardee’s claimed no creation or notice of any hazard, that any condition was open and obvious, and that Mrs. Scheerer failed to keep a proper lookout.
- A Hardee’s employee completed an incident report immediately after the accident stating, among other things, that the lot was “dry and not oily” and that Mrs. Scheerer wore “slippery shoes”; the form directed submission to claims and risk management channels.

## Issues

1. Whether the district court erred by admitting Hardee’s incident report as a business record under Fed. R. Evid. 803(6).
2. Whether the erroneous admission, if any, was harmless in light of the trial record.

## Decision

- The Eighth Circuit reversed the judgment for Hardee’s and remanded for further proceedings.
- The court held the incident report was not admissible under Fed. R. Evid. 803(6) because the circumstances of preparation indicated a lack of trustworthiness.
- The court concluded the evidentiary error was prejudicial because the report addressed central disputed facts and could have materially affected the verdict, requiring a new trial.

## Legal Principles

- Under Fed. R. Evid. 803(6), a record is admissible only if made at or near the time by a person with knowledge, kept in the course of regularly conducted activity, and made as a regular practice of that activity.
- Even when foundational elements appear satisfied, a record must be excluded if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
- Accident or incident reports prepared for claims handling or in anticipation of litigation—especially those containing evaluative, fault-allocating, or self-serving assertions on contested issues—may fail Rule 803(6) trustworthiness requirements and are not rendered admissible merely because the business regularly uses a standard form.
- Where a contested case turns on sharply conflicting evidence, improper admission of a litigation-oriented report that supports one party’s causation theory may constitute reversible, non-harmless error.

## Conclusion

The court ordered a new trial because the defendant’s incident report, prepared for claims/risk-management purposes and containing disputed, evaluative statements on causation, lacked the trustworthiness required for admission as a business record under Rule 803(6), and its admission likely influenced the jury’s verdict.


Scheerer v. Hardee's Food Sys., Inc., 92 F.3d 702 (8th Cir. 1996)