Who Would Have Thought To Consult With The Dictionary

Eleventh Circuit Finds Judges Can Take Judicial Notice of Dictionary Definitions

By Evidence ProfBlogger

Federal Rule of Evidence 201  covers judicial notice, and subsections (a) and (b) state the following:

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

So, can a judge take judicial notice of dictionary definitions? That was the question addressed by the Eleventh Circuit in its recent opinion in Robinson v. Liberty Mutual Insurance Company, 2020 WL 2315763 (11th Cir. 2020).

In Robinson, after the Robinsons moved into their home, they discovered an infestation of the highly venomous brown recluse spider. Following an attempt to eradicate the infestation, the Robinsons obtained a homeowners policy from Liberty Mutual. That policy “insure[d] against risk of direct loss to property…only if that loss is a physical loss to property.” But the policy excluded from coverage any loss “[c]aused by… [b]irds, vermin, rodents, or insects.” Liberty Mutual cited that exclusion in its letter denying coverage for a claim the Robinsons filed for damage to their home after further attempts to eradicate the infestation failed.

After the Robinsons sued Liberty Mutual for breach of contract, the district court dismissed their complaint, finding that brown recluse spiders are both insects and vermin, with the Eleventh Circuit later affirming. Both courts took judicial notice of dictionary definitions, noting, inter aliathat

All dictionaries we have reviewed, both modern and old, list spiders as an example of an “insect.” See, e.g.Insect, Oxford English Dictionary Online (last visited May 9, 2020), https://www.oed.com/view/Entry/96686Insect (in American English), Collins Dictionary Online (last visited May 9, 2020), https://www.collinsdictionary.com/us/dictionary/english/insectInsectMerriam-Webster’s Collegiate Dictionary (11th ed. 2007); InsectWebster’s Third New International Dictionary(1993); InsectWebster’s New International Dictionary (2d ed. 1961); InsectWebster’s New International Dictionary (1st ed. 1920); and

Brown recluse spiders are also “vermin” under the ordinary meaning of that term. Vermin include “small common harmful or objectionable animals (as lice or fleas) that are difficult to control.” VerminMerriam-Webster’s Collegiate Dictionarysupra. The term refers to “noxious or objectionable” creatures and includes “creeping or wingless insects (and other minute animals) of a loathsome or offensive appearance or character, esp. those which infest.” Vermin, Oxford English Dictionary Online (last visited May 9, 2020), https://www.oed.com/view/Entry/222579see also Vermin, American Heritage Dictionary of the English Language Online (last visited May 9, 2020), https://www.ahdictionary.com/word/search.html?q=verminVerminWebster’s Third New International Dictionarysupra.

The Eleventh Circuit reject[ed] the Robinsons’ argument that the district court could not take “judicial notice” of dictionary definitions without first affording them a hearing. See Fed. R. Evid. 201. Rule 201 permits courts to take notice of “an adjudicative fact” that is “generally known” and “whose accuracy cannot reasonably be questioned,” so long as it affords the parties an opportunity to be heard on the propriety of doing so if requested. Fed. R. Evid. 201(a)-(b), (e). But Rule 201 “governs judicial notice of an adjudicative fact only, not a legislative fact.” Fed. R. Evid. 201(a). “[A]djudicative facts are those developed in a particular case,” while “[l]egislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally.” W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1316 (11th Cir. 2018) (internal quotation marks omitted); see also Fed. R. Evid. 201(a) advisory committee’s note to 1972 proposed rule (“Adjudicative facts are simply the facts of the particular case.”). Dictionary definitions establish legislative facts when used to answer a question of law, such as how to interpret contractual terms. See Fed. R. Evid. 201(a) advisory committee’s note to 1972 proposed rule (“Legislative facts … are those which have relevance to legal reasoning and the lawmaking process … in the formulation of a legal principle or ruling by a judge or court….”) (emphasis added).

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