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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, September 17, 2008

Providing The Answer: Court Denies Summary Judgment In Lawsuit Against Allen Iverson, But Highlights Hearsay Problem

I distinctly remember being an 11th grader in Virginia Beach in 1993 when Governor Douglas Wilder pardoned Hampton basketball star Allen Iverson after he was convicted for his role in a bowling alley brawl.  And the reason I remember it so well is because of the sharp debates that Wilder's decision engendered in the hallways and cafeteria (I also remember Iverson's college games at Georgetown being appointment TV).  Well, it looks as if A.I. has gotten himself into some more legal trouble, at least according to a patron at the D.C. nightclub Zanzibar on the Waterfront (which, anecdotally, was literally steps away from my wife's summer sublet when she was working as a law clerk at the National Housing Law Project).

In Broady v. Zanzibar on the Waterfront, LLC, 2008 WL 4191078 (D.D.C. 2008), Gregory Broady alleged that he incurred significant injuries when he was struck by an unidentified security guard at the Zanzibar on the Waterfront nightclub.  In his complaint, Broady identified the security guard as "John Doe" and alleged that John Doe was employed either by Zanzibar or by Iverson, who was at Zanzibar on the night that Borady was allegedly injured.  In Broady, Iverson moved for summary judgment, which the court denied, finding that there was a genuine issue of material fact as to whether Iverson had an agency relationship with John Doe when Doe allegedly struck and injured Broady.

Notwithstanding this denial, the court noted that Broady's filings in connection with his opposition to Iverson's motion included a number of factual assertions that were entirely unsupported by the record. The court thus "identifie[d] the most egregious of Plaintiff's unsupported assertions below, in order to frame the future litigation of th[e] case."  In so doing, however, I think that the court overstated the difficulty that Broady will face in attempting to prove one of his allegations.

Specifically, the court highlighted Broady's assertion that after he was "struck and injured, the John Doe guard was approached about his behavior, Allen Iverson indicated, 'If he goes, I go.', and both were allowed to stay. This represents ratification of the conduct by Allen Iverson." Allen Iverson."  The court noted that in support of this assertion, Broady cited to his own deposition testimony that he had a telephone conversation with a Zanzibar owner in the days following the alleged incident with John Doe, during which the Zanzibar owner,

     "said that the gentleman that I explained to him that I had a problem with, that I described, said that they had a problem with him and they were going to escort him out of the club and that is when Allen Iverson stepped up and said if he goes, then I go, and they said that they were forced to let him stay."

According to the court,

     "Plaintiff's testimony represents inadmissible hearsay because Plaintiff offers it for the truth of the matter asserted, i.e., to prove that Allen Iverson said 'If he goes, I go....'  Indeed, Plaintiff's testimony represents double hearsay; he offers his own report as to what the unidentified Zanzibar owner purportedly told him Iverson allegedly said on June 4, 2004. In short, Plaintiff's double hearsay testimony cannot support a conclusion that Iverson ratified John Doe's alleged action in striking Plaintiff."

As I said, I think that this overstates the matter and makes it appear that Broady faces two hurdles in getting Iverson's statement.  In fact he only faces one.  That's because, pursuant to Federal Rule of Evidence 801(d)(2)(A), Iverson's statement is the admission of a party-opponent (the civil defendant) and thus, technically, non-hearsay.  What this means is that all that Broady needs to do to get Iverson's statement before a jury is convince the Zanzibar owner to testify concerning Iverson's statement.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/09/allen-iverson-b.html

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