Monday, April 28, 2014

Judicial notice and the 'known knowns.'

“A court may take judicial notice of facts generally known and accepted and have been duly authenticated in repositories of fact open to all, and especially so of facts of official, scientific or historical character as the same may be set down and recorded in encyclopedias, dictionaries, and the like to which the court may turn to verify its information or refresh its recollection”.   State of Mo ex rel Hostetter, etal, 104 S.W.2d 671 (Mo. 1937).

In 1937 an entry of encyclopedia made a difference whether or not a claimant could recover from a work injury when lightning struck a building because the court used judicial notice that barns are a “peculiar object of the destructive force of lightening.”    Hostetter, supra.

Any request for judicial notice must be preserved on a timely basis.  Shelton v City of Springfield, 2003 Mo WCLR Lexis 38 (rejecting admission of ordinances which were not newly discovered evidence).

Judicial notice has been used as a tool of statutory interpretation when the legislature fails to define its own terms.    Miller v Mo Highway Transportation Commission, 2008 MO WCLR Lexis 113 (event, traumatic, external, violence);  Peery v Mid Continental Industrial, 2008 MO WCLR Lexis 43 (medical abbreviations);  Rader v Werner Enterprises, 2010 Mo WCL Lexis 161 (own);  Ahern v P & H, 2007 MO WCLR Lexis 177 (idiopathic); Carter v Terminix, 2008 MO WCLR Lexis 146 (automobile), Hammonds v Columbia Mall Car Wash, 2009 Mo WCLR Lexis 168 (shift); Johnson v Town & Country, 2007 Mo WCLR Lexis 232 (hazard).

 The doctrine may arise regarding disputes concerning pleadings and mileage. Judicial notice allows a judge to take “notice” of its own file.  Judicial notice can also resolve mileage disputes.  The Commission has recognized the distance between cities as a matter of judicial notice.  Woods  Brauer Supply, 2004 Mo WCLR Lexis 30.  In Illinois, the Commission found Mapquest sufficiently reliable to invoke judicial notice.   The court noted it calculated its own search to verify mileage claimed and noted only a “negligible” difference in the calculation when the calculation was not part of the record itself.  Shaffer v Contech Construction, 2007 Ill. Wrk. Comp. Lexis 986.
The quest to find the “known knowns” can produce curious results.    Librarians apparently are known to  fall more than the average member of the public,  Keyster v Univ. School District, 2004 Mo WCLR Lexis 173. A claimant who did not have hemoglobin would be “deemed a vampire.”  Collier v A.G. Edwards and Sons, 2004 Mo WCLR Lexis 12.    Clearly, if Collier  had been written in 2014 some clerk at the Commission  would have probably cited Wikipedia.


The Commission disclaimed a finding by a judge that breast cancer caused or worsened a worker's depression because the conclusion was based on the judge's own "lay" opinion.  Smith v Dannie Gilder, 2014 MO WCLR Lexis 106 (Aug 26, 2014).