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Choban v Trust Territory [1985] TTLawRp 3; 8 TTR 467 (17 May 1985)

8 TTR 467

MIKE CHOBAN, a minor, by his parent and natural guardian,
MIKE CHOBAN, and MIKE CHOBAN, Plaintiffs-Appellants

v.

TRUST TERRITORY OF THE PACIFIC ISLANDS, and
GOVERNMENT OF THE MARSHALL ISLANDS, Defendants-Appellees

Civil Appeal No. 397

Appellate Division of the High Court

Marshall Islands District

May 17, 1985

Appeal from judgment of the trial division finding defendants free from liability for injuries received by plaintiff in a gasoline vapor explosion on property under the possession and control of the defendants. The Appellate Division of the High Court, per curiam, held that use at trial of deposition of plaintiff which was not properly admitted constituted reversible error, and therefore judgment of the trial court was reversed.

1. Evidence-Depositions-Admissibility

A deposition may only be used under one of the following conditions:

1) the deposition is offered to impeach the deponent as a witness; or 2) the deposition is one of a person authorized to testify on behalf of a public or private corporation; or 3) the deposition is of an unavailable witness. (Rules Civil Proc. 26)

2. Evidence-Depositions-Admissibility

A deposition not offered and admitted into evidence cannot be considered by the trier of fact.

3. Evidence-Depositions-Admissibility

Since a deposition is only secondary evidence, a trial court errs by admitting a deposition without an adequate foundation that the necessary conditions for its admission are satisfied. (Rules Civil Proc. 26)

4. Evidence-Depositions-Admissibility

Counsel at trial cannot argue from a deposition which has not been properly admitted into evidence.

5. Evidence-Depositions-Admissibility

It was error for trial judge to allow counsel to argue from a deposition which had not been properly admitted into evidence, and for the trial judge to state from the bench at trial that he, too, had read the deposition.

6. Evidence-Depositions-Admissibility

At trial, use of deposition of plaintiff which was not properly admitted into evidence constituted reversible error, where trial court relied heavily on plaintiff's testimony in rendering his verdict for defendants, and the deposition contained prior inconsistent statements of plaintiff, and therefore may have affected the trial court's judgment.