Judicial Notice in the Key Number System

July 26, 2011

I’m a great fan of West’s Key Number system.  Not only is it a useful research tool, but it can also be a huge source of entertainment.  I’ve been a Westlaw Headnote of the Day subscriber for years.  A recent Headnote of the Day featured the following headnote (click here to see the accompanying cartoon), which got me thinking about judicial notice:

157 Evidence > 157I Judicial Notice > 157k14 k. Facts Relating to Human Life, Health, Habits, and Acts.

District Court of Appeal may take judicial notice that even a normal person on seeing a disgusting looking object in bottle from which he has drunk may and often will suffer intense nausea which may produce more serious results.  Paul v. Rodgers Bottling Co., 6 Cal. Rptr. 867 (Cal. Ct. App. 1960).

Judicial notice can be a fascinating subject.  Some items, of course, are more obviously going to be judicially noticeable, such as the existence of a suit filed in another court, or the day of the week, or the identity of the President of the United States. 

But some areas are less clear.  For example, I have gotten a number of research questions regarding whether the contents of a website is a proper subject of judicial notice.  A quick search of the Key Number Digest turns up 70 headnotes under Judicial Notice that contain the word “website,” across state and federal materials.  So we see language like the following:

157 Evidence > 157I Judicial Notice > 157k1 Nature and Scope in General.

Court may take judicial notice of website’s contents, assuming its authenticity has not been challenged and it is capable of accurate and ready determination.  Francarl Realty Corp. v. Town of E. Hampton, 628 F. Supp. 2d 329 (E.D.N.Y. 2009).

But parties should also be wary of relying on websites:

157 Evidence > 157I Judicial Notice > 157k27 Laws of the State > 157k29 Public statutes

The Court of Appeal would not take judicial notice of the Legislature’s internet site showing laws currently in effect, including a statute that plaintiff alleged was in effect, in determining that the statute had been repealed; the website was not brought to the attention of the trial court, the website was not the official, printed Government Code, and the website made no promises regarding its accuracy. Zumbrun Law Firm v. California Legislature, 82 Cal. Rptr. 3d 525 (Cal. Ct. App. 2008).

On Westlaw.com, users can reach the Key Number system from the link of the top of any page.  For WestlawNext subscribers, the Key Number System page is linked from the Tools tab on the WestlawNext home screen.  Both offer options for browsing Key Numbers in a table-of-contents format, or searching by jurisdiction. 

Here are two other matters I found by browsing 157 Evidence > 157I Judicial Notice > 157k7, Qualities and Properties of Matter:

It is a matter of common knowledge that motorcycles, if operated loudly, can be objects of great annoyance. Berlinger v. Suburban Apartment Mgmt. Co., 7 Ohio App. 3d 122, 454 N.E.2d 1367 (Ohio Ct. App. 1982).

That small amount of water in bathtub creates slippery condition is matter of common knowledge. Cooper Hotel Services, Inc. v. MacFarland, 662 So. 2d 710 (Fla. Dist. Ct. App. 1995).