22 F.Supp.2d 275 (1998)
Kenneth SMITH, Plaintiff,
v.
MONTEFIORE MEDICAL CENTER-HEALTH SERVICES DIVISION; New York City Department of Correction; Deputy Warden of Programs Manzi; John Doe 1 (Asbestos Coordinator); John Doe 2 (Doctor-Physician Assistant) and Jane Doe, Defendants.
THE CITY OF NEW YORK s/h/a the New York City Department of Correction, Third-Party Plaintiffs,
v.
DAKAR CONSTRUCTION CORPORATION and Dakar Developers Inc., Third-Party Defendants,
DAKAR DEVELOPERS INC., Fourth-Party Plaintiff,
v.
A.L. EASTMOND & SONS INC. d/b/a Ale, Inc., D & S Restoration, Inc. and Reliance National Insurance Company of New York, Fourth-Party Defendants.
No. 94 Civ. 7645(SAS).
United States District Court, S.D. New York.
October 14, 1998.
*276 Kenneth Smith, pro se.
Christopher Reo, Asst. Corp. Counsel, Corp. Counsel of City of New York, New York, NY, for Municipal Defendants.
Marc Pillinger, Smith Mazure Director Wilkins, Young Yagerman & Tarallo, P.C., New York, NY, for D&S Defendants.

OPINION & ORDER
SCHEINDLIN, District Judge.
Plaintiff, proceeding pro se, brings this action under 42 U.S.C. § 1983 against Montefiore Medical Center, the City of New York,[1] and Deputy Warden Angelo Manzi (the "municipal defendants") alleging, inter alia, that he was denied medical care while he was in the custody of the New York City Department of Correction. See Amended Complaint, ¶ IV(3)-(5). Thereafter, the municipal defendants instituted a third-party action against Dakar Developers Inc. seeking contractual indemnification. Dakar Developers Inc. then brought a fourth-party action for breach of contract against A.L. Eastmond & Sons, Inc., Reliance National Insurance Company of New York, and D & S Restoration, Inc. (collectively "D & S").
By Order of Magistrate Judge James C. Francis dated June 5, 1997, defendants were granted permission to move for summary judgment. The municipal defendants and D & S moved on the ground that there is no evidence that plaintiff suffered from a serious medical condition as the result of his alleged exposure to asbestos. For the following reasons, summary judgment is granted in defendants' favor and plaintiff's complaint is hereby dismissed.

I. The Facts

A. Plaintiff's Claims
In May 1994, plaintiff was arrested and charged with second-degree robbery. See Deposition of Kenneth Smith ("Smith Dep."), p. 53, annexed as Exhibit C to the Declaration of Christopher Reo, attorney for the municipal defendants, sworn to June 19, 1998 ("Reo Decl."). He was taken into the custody *277 of the New York City Department of Correction ("NYCDOC") on May 10, 1994. Smith Dep., p. 9. On August 12, 1994, while housed in the George Motchan Detention Center ("GMDC"),[2] plaintiff alleges that a corridor ceiling covering collapsed causing him to be showered with debris, dust, rocks and insulation material. Id., pp. 56, 107, 111.
Plaintiff alleges that the debris and dust entered his mouth, eyes, nose, and covered his body. Id., pp. 95, 111, 115, 119. Plaintiff claims he was trapped in the hallway between 30 and 45 seconds and breathed 15 to 20 times before someone inside the prison law library opened the door and allowed him to enter. Id., pp. 115, 117, 124-25. Plaintiff states that he rinsed the material from his mouth, eyes and nose at a sink in the law library. Id., pp. 122-24. The material, according to plaintiff, was later discovered to be asbestos.[3]See Amended Complaint, ¶ IV. After the incident, plaintiff allegedly began having trouble breathing, his eyes reddened and teared, and his nose was clogged and runny. Smith Dep., pp. 130-31; 205-08.
Plaintiff states that he signed up for sick call on the day of the exposure but was not called to the prison's Montefiore Medical Clinic until August 15, 1994, three days later. Amended Complaint, ¶ IV(4). Plaintiff asserts that he repeatedly asked to go to emergency sick call over the weekend. Id. In response to these requests, plaintiff was allegedly told by Montefiore staff that asbestos exposure was not an emergency. Id.
Plaintiff also claims that Deputy Warden Manzi was of no assistance in securing medical assistance. When confronted with plaintiff's exposure, Warden Manzi allegedly responded: "What are you wooried [sic] about it for? It'll be twenty to thirty years before that kind of asbestoes [sic] will make you sick!" Id., ¶ IV(3). In a declaration sworn to September 15, 1998 ("Manzi Decl.") (a copy of which is attached as Exhibit A to the Reply Declaration of Christopher Reo, attorney for the municipal defendants, sworn to September 17, 1998), Deputy Warden Manzi states that he is "not aware of any instance in which an inmate at G.M.D.C. informed [him] that he had been exposed to asbestos." Manzi Decl., ¶ 3. Furthermore, Deputy Warden Manzi refutes plaintiff's contention that he observed plaintiff in clothing covered with a white dusty substance which he had reason to know was asbestos. Id., ¶ 4. Although Deputy Warden Manzi has no recollection of plaintiff's alleged request for medical attention on August 12, 1994, he states that it is his practice and procedure to assist inmates in obtaining medical attention. Id., ¶ 5. Accordingly, Deputy Warden Manzi denies plaintiff's allegation that he directed personnel at the GMDC prison health clinic to neither treat nor record plaintiff's alleged exposure to asbestos. Id., ¶ 6. Once again, for the purposes of this motion, I will accept Smith's allegations at true.
Plaintiff went to the Montefiore Medical Clinic on August 15, 1994 and complained that he was coughing and had difficulty breathing, and that his eyes were irritated. Smith Dep., pp. 207-08. He was given cough medication and eye solution for his symptoms. Amended Complaint, ¶ IV(5). He was also sent for x-rays and sputum tests. Id. According to plaintiff, on subsequent sick call appearances he was refused treatment by Montefiore staff who allegedly stated that "it was institutional policy not to deal any longer with the individuals reporting to sick-call for treatment of asbestoes [sic] exposure." Id.
Plaintiff claims that as a result of the August 12 incident, he suffers from nasal *278 congestion, shortness of breath, pain in his rib cage, and dizziness. Smith Dep., p. 226. He also claims to suffer from the following progressively degenerating maladies: respiratory infections, pleuritis, asthma, acute bronchitis, conjunctivitis, rhinitis, and inflammatory disease of the paranasal sinuses. See Affidavit of Kenneth Smith, sworn to August 6, 1998 ("Smith Aff."), ¶ 1(a). He also claims that a pre-existing hearing condition worsened due to the alleged asbestos exposure. Finally, plaintiff avers that he suffers emotional and mental anguish as well as a fear of developing asbestos-related illness in the future. Id., ¶ 1(c).

B. Plaintiff's Medical Records
While incarcerated by the NYCDOC, plaintiff was housed at the GMDC and the Otis Bantum Correctional Center ("OBCC"). While at the GMDC, plaintiff admits that he was treated at the Montefiore Medical Clinic 5 to 10 times for his asbestos complaints. Smith Dep., p. 224. At the OBCC, plaintiff went to the clinic approximately 10 to 15 times for respiratory and other problems and saw more than 20 health professionals while he was there. Id., pp. 237-38. Plaintiff was evaluated by medical personnel upon transfer from the GMDC to the OBCC. However, this evaluation does not indicate that plaintiff complained of asbestos exposure or that he suffered from any respiratory condition. See Reo Decl., Exh. L (November 11, 1994 OBCC Intake History and Physical Examination form). Similarly, plaintiff's December 28, 1994 admission record into Bellevue Hospital for treatment for unrelated injuries does not mention exposure to asbestos or indicate that plaintiff suffered from any respiratory conditions at that time. See Reo Decl., Exh. M.
In March 1995, plaintiff was transferred from the NYCDOC to the New York State Department of Correctional Services ("NYSDOCS"). Upon transfer, plaintiff was examined and interviewed by medical professionals. At that time, plaintiff did not complain, nor do his medical records indicate, that he was exposed to asbestos or suffered from any respiratory condition. See Reo Decl., Exh. N (March 16, 1995 NYSDOCS Medical Pre-Screening Form). While incarcerated by the NYSDOCS, plaintiff was admitted to the Erie County Medical Center ("ECMC") for treatment for unrelated injuries. Upon admission, plaintiff's medical history and physical condition were reviewed by medical professionals and an anesthesiologist. Again, there are no complaints of exposure to asbestos or respiratory problems. See Reo Decl., Exh. O (June 16, 1996 Anesthesia Evaluation Form).

C. Reports of Medical Experts
In addition to the absence of asbestos-related complaints in plaintiff's medical records, several of defendants' medical experts examined plaintiff and reviewed his medical records. Each expert concluded, with a reasonable degree of medical certainty, that plaintiff suffers from no condition associated with asbestos exposure.
Doctor Lester B. Mayers is a board certified physician specializing in pulmonary diseases and internal medicine. See Affidavit of Doctor Lester B. Mayers, sworn to June 11, 1998 ("Mayers Aff."), ¶ 1 (a copy of which is annexed as Exhibit I to the Reo Declaration). Doctor Mayers examined plaintiff and reviewed his medical records. Mayers Aff., ¶ 4. Dr. Mayers noted that although plaintiff's medical records indicate that "he repeated[ly] visited the prison clinic and was examined extensively during the course of his incarceration, none of those examinations revealed evidence of any asbestos related illness." Id., ¶ 10. Dr. Mayers concluded that plaintiff does not suffer from any physical disorder related to the alleged instance of asbestos exposure. Id., ¶ 11. Moreover, he found "no medical or physical objective findings to establish any asbestos related disease or condition." Id. According to Dr. Mayers, exposure to asbestos for less than one minute is insufficient to cause an increased risk of any asbestos related illness. Id., ¶ 8. Finally, Dr. Mayers concluded that a single exposure to asbestos does not lead to asbestos related disease. Id., ¶ 11.
In a Supplemental Affidavit ("Mayers Supp. Aff.") (a copy of which is annexed as Exhibit A to the Reply Affidavit of Marc H. Pillinger, attorney for fourth-party defendants), *279 Dr. Mayers addressed several allegations made by plaintiff in his opposition to the instant motion. In particular, Dr. Mayers refuted plaintiff's contention that his alleged diagnosis of bronchitis and asthma proves that he sustained asbestos-related illness. According to Dr. Mayers, neither bronchitis nor asthma are asbestos-related symptoms. Mayers Supp. Aff., ¶ 5. In addition, Dr. Mayers also rejected the following as "objective" findings of asbestos-related disease: a hemangioma, expiratory wheeze and sinus congestion, inflammatory disease in the paranasal sinuses, and pseudo tumor cerebri. Id., at ¶ 6. Dr. Mayers stated that these findings are not asbestos-related and that there is nothing in plaintiff's medical records to even remotely indicate a causal connection. Id.
Plaintiff was also examined by Doctor Ralph A. Olson, a physician board certified in neurological surgery. See Affidavit of Doctor Ralph A. Olson, sworn to June 11, 1998, ("Olson Aff."), ¶¶ 1, 2 (a copy of which is annexed as Exhibit J to the Reo Declaration). His examination revealed that plaintiff does not suffer from any neurological disorder or deficit as a result of his alleged exposure to asbestos. Olson Aff., ¶ 6. In addition, Dr. Olson's review of plaintiff's medical records also indicated that plaintiff did not suffer from any asbestos-related neurological condition. Id., ¶ 5.
Finally, plaintiff was examined by Malcolm H. Schvey, a board certified otolaryngologist. See Affidavit of Malcolm H. Schvey, sworn to June 15, 1998 ("Schvey Aff."), ¶ 1 (a copy of which is attached as Exhibit K to the Reo Declaration). Doctor Schvey examined plaintiff's ears, nose and throat, his medical records and the audiological report of Dr. Lawrence Deutsch. Schvey Aff., ¶¶ 5, 13. Dr. Schvey found plaintiff's ears, mouth, palate, hypopharynx, larynx and neck to be normal but that he suffered from allergic rhinitis in his nose. Id., ¶ 6. Dr. Schvey concluded, with a reasonable degree of medical certainty, that the rhinitis was caused by an allergic reaction, does not affect plaintiff's hearing, and was not causally related to any alleged exposure to asbestos. Id., ¶ 12. After performing several objective and subjective test to ascertain plaintiff's audiological abilities, Dr. Schvey concluded that plaintiff can hear speech at normal levels. Id. In reaching this conclusion, Dr. Schvey noted that asbestos is not an ototoxic material, meaning that it does not cause hearing loss. Id., ¶ 4. According to Dr. Schvey, plaintiff has no appreciable hearing loss in either ear but has been well coached in feigning such loss. Id., ¶ 7.

II. Discussion

A. The Legal Standard
A motion for summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment has the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). However, the moving party is not required to affirmatively disprove unsupported assertions made by the nonmoving party. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e); see also Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). If there is any evidence in the record from which a reasonable inference could be drawn *280 in favor of the nonmoving party on a material issue of fact, summary judgment is improper. See Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir.1997).
Finally, although the same standards for summary judgment apply when a pro se litigant is involved, the pro se litigant "should be given special latitude in responding to a summary judgment motion." Gonzalez v. Long, 889 F.Supp. 639, 642 (E.D.N.Y.1995); see also Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988) ("special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment"). Thus, a pro se litigant's complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

B. Plaintiff's Deliberate Indifference Claim
Plaintiff was a pre-trial detainee rather than a convicted prisoner at the time of the alleged incident. Therefore, the standards of the Fourteenth Amendment, not the Eighth amendment, apply to his claim of inadequate medical care. Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.1991) (citations omitted). Nonetheless, the "Second Circuit applies the same standards to deliberate indifference claims under both the Fourteenth Amendment's due process protections and the Eighth Amendment's cruel and unusual punishment protections." Sassower v. City of White Plains, 89 Civ. 1267, 1995 WL 222206, at *9, n. 14 (S.D.N.Y. April 13, 1995) (citing Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.1973)). See also City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (a plaintiff's due process rights under the Fourteenth Amendment are "at least as great as the Eighth Amendment protections available to a convicted prisoner."); Montavon v. Town of Southington, 95 Civ. 1141, 1997 WL 835053,*4 (D.Conn. Sept. 29, 1997) ("Although the Supreme Court has not articulated the duties of a custodial official under the Due Process Clause to provide medical care to a pretrial detainee, it is clear that the detainee's rights are as great as those afforded to a convicted prisoner under the Eighth Amendment"). Accordingly, plaintiff's denial of medical care claim will be analyzed under Eighth Amendment case law.
"Claims of deliberate indifference to serious medical needs are tested under a two-pronged standard requiring sufficient proof of both a serious medical need [objective component] and deliberate indifference to that need [subjective component]." Sassower, 1995 WL 222206, at *8 (citing Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). A serious medical need is one that contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, 37 F.3d at 66 (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J. dissenting)).[4] The "seriousness of a medical need may also be determined by reference to the effect of denying or delaying medical treatment." Sassower, 1995 WL 222206, at *8. However, "[m]ere delay in the rendering of medical treatment in and of itself does not rise to the level of a constitutional violation ... To demonstrate a constitutional violation, a plaintiff must show that he sustained substantial harm because of the delay in the rendering of medical treatment." Burtton v. Gritter, 95 Civ. 504, 1995 WL 729312, at *4 (N.D.Ind. Nov. 17, 1995) (citations omitted).
With regard to the subjective component, the "charged prison officials must have acted with a sufficiently culpable state of mind by being deliberately indifferent to the health or safety of an inmate." King v. Department of Correction, 95 Civ. 3057, 1998 WL 67669, at *5 (S.D.N.Y. February 18, 1998) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 *281 (1994)). Deliberate indifference to serious medical needs exists only when a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Deliberate indifference may also be manifested by "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (footnotes omitted). Negligence, however, does not suffice to establish a constitutional violation. Daniels v. Williams, 474 U.S. 327, 333, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Moreover, the Eighth Amendment is only violated by deliberate indifference to medical needs if those needs are serious. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ("society does not expect that prisoners will have unqualified access to health care").
Here, plaintiff does not allege facts sufficient to rise to the level of a constitutional violation. Although it is beyond dispute that he was forced to wait three days before he received medical attention, there is nothing in the record to suggest that this delay affected the course of treatment plaintiff would have otherwise received. Basically, plaintiff went to the clinic with cold-like symptoms for which he was given cough syrup and eye solution. Hence, his immediate medical needs were not sufficiently serious to invoke the protections of the Eighth Amendment. Simply put, there is not much that can be done immediately for exposure to asbestos. Thus, although plaintiff may face the risk of developing asbestos-related illnesses in the future, his medical needs at the time of exposure and shortly thereafter were not serious.
Plaintiff's reliance on Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), does little to further his cause. In Helling, an inmate sued prison officials for jeopardizing his health by assigning him to a cell with another inmate who smoked 5 packs of cigarettes a day. Id. at 28, 113 S.Ct. 2475. The Supreme Court rejected the notion that the harm had to be immediate:
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.
Id. The Court thus held that the inmate stated a cause of action under the Eighth Amendment by alleging that the prison officials "have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health." Id. at 35, 113 S.Ct. 2475 (emphasis added).
Here the problem is that the defendants were not deliberately indifferent to plaintiff's medical needs. Given the lack of any treatment for exposure to asbestos, it cannot be said that defendants disregarded an unreasonable risk to plaintiff's health by delaying his access to medical treatment for three days. Moreover, the latency between the exposure and any physical injury belies the notion that the defendants were aware of a substantial risk of serious harm from delaying treatment and consciously ignored that risk. At most, defendants may have been negligent in subjecting plaintiff to a three-day delay but this does not rise to the level of a constitutional violation. See Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir.1991) (citing Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Accordingly, plaintiff's claim of deliberate indifference to his medical needs claim must be dismissed.

C. Plaintiff's Failure to Warn Claim
In Seymour/Jones v. Bricker, 90 Civ. 7757, 1990 WL 223171, at *1 (E.D.Pa. December 18, 1990), an inmate sued prison officials for deliberately failing to warn him of certain remedial asbestos work being performed at the prison. In analyzing the claim, the court stated: "The only possible constitutional claim that is therefore available to [plaintiff] is that the asbestos work and the defendants' failure to warn him created conditions of confinement that constituted cruel and unusual *282 punishment under the Eighth Amendment." Id.
The Supreme Court has held that prisoners claiming that conditions of confinement constitute cruel and unusual punishment are required to show deliberate indifference on the part of prison officials. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). In addition, for a "claim based on a failure to prevent harm, an inmate must show that he was incarcerated under conditions posing a substantial risk of serious harm." Doyle v. Coombe, 976 F.Supp. 183, 186 (W.D.N.Y. 1997) (citing Farmer, 511 U.S. at 834, 114 S.Ct. 1970), aff'd, 1998 WL 537066 (2d Cir. 1998).
Here, again, plaintiff's claim must fail because there is nothing in the record that could support a finding of deliberate indifference on the part of the defendants. Assuming plaintiff's allegations to be true, warning signs were posted three days after the alleged incident. As the Supreme Court has stated: "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause ..." Whitley v. Albers, 475 U.S. at 319, 106 S.Ct. 1078. The fact that warning signs were not posted earlier does not reveal deliberate indifference; at most, it represents negligent conduct. As defendants could not have possibly foreseen the circumstances of plaintiff's alleged exposure, they lacked the culpable state of mind necessary for a constitutional violation.[5] As the Supreme Court noted, "if a prison boiler malfunctions accidentally during a cold winter, an inmate would have no basis for an Eighth Amendment claim, even if he suffers objectively significant harm." Wilson, 501 U.S. at 300, 111 S.Ct. 2321. Accordingly, plaintiff's failure to warn claim must also be dismissed.[6]
Plaintiff's failure to warn claim must also fail for an additional reason, namely the lack of evidence of a municipal policy or custom. It is well established that a municipality may not be held liable under 42 U.S.C. § 1983 on a respondeat superior basis. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, a municipality may only be held liable under § 1983 for the unconstitutional actions of its employees if those acts were the result of a municipal policy, practice or custom. Id. at 690-91, 98 S.Ct. 2018. A "policy, practice or custom" may include a formal policy endorsed by the municipality or a failure by policy makers to train or supervise subordinates. City of Canton v. Harris, 489 U.S. 378, 386-88, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The plaintiff must show that the municipality was the "moving force" behind plaintiff's injury. Monell, 436 U.S. at 692, 98 S.Ct. 2018; Board of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). That is, "a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of civil rights." Brown, 117 S.Ct. at 1388.
Here, plaintiff offers no proof of a policy of failing to warn inmates of asbestos work on the part of the City of New York. Rather, he alleges one single injurious event from which he asserts that the City of New York, in conspiracy with its contractors, negligently failed to warn him. "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it *283 was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). But see Javid v. Scott, 913 F.Supp. 223, 230 (S.D.N.Y.1996) (noting that in Turpin v. Mailet, 619 F.2d 196 (2d Cir.1980), the Second Circuit held that a single incident of alleged constitutional violation may support a claim against a municipality).[7] In any event, bare allegations of such a policy or custom, without any supporting evidence, do not constitute such proof. See Dwares v. New York, 985 F.2d 94, 100 (2d Cir.1993) ("The mere assertion, however, that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support ... such an inference."). Accordingly, plaintiff's failure to warn claim must be dismissed. See King, 1998 WL 67669, at *3.

D. Plaintiff's Conspiracy Claim
Plaintiff alleges that medical professionals, as well as defendant Manzi, conspired to conceal the effects of his asbestos exposure by preventing transcription of any discussion of plaintiff's alleged exposure to asbestos. For such a conspiracy to exist, it would have to involve health care providers employed by the Montefiore Medical Center, Bellevue Hospital, Erie County Medical Center and the New York State Department of Correction. However, beside conclusory allegations, plaintiff offers no evidence of such a widespread conspiracy. Plaintiff's completely unsubstantiated allegations of conspiracy are insufficient to defeat defendants' motion for summary judgment. See San Filippo v. U.S. Trust Co. Of New York, Inc., 737 F.2d 246, 256 (2d Cir.1984) (plaintiff's unsubstantiated allegations were insufficient to state a valid § 1983 claim); see also Hameed v. S. Pundt, 964 F.Supp. 836, 839 (S.D.N.Y.1997) ("conclusory, vague and general allegations are insufficient to establish that defendants conspired to violate [an inmate's] constitutional rights"). Accordingly, plaintiff's conspiracy claim must also be dismissed.

III. Conclusion
For the reasons set forth above, summary judgment is granted in favor of defendants and plaintiff's complaint is hereby dismissed. The Clerk of the Court is directed to close this case.
NOTES
[1]  I previously directed that the City of New York be substituted for defendant New York City Department of Correction.
[2]  Also known as the C-73 Correctional Facility.
[3]  There is considerable controversy as to whether plaintiff was exposed to asbestos at all. Plaintiff alleges that hazardous material warning signs were placed in the area on August 15, 1994 and that following his exposure, he notified two law library coordinators who indicated to him that they were similarly exposed. See Amended Complaint, ¶ IV(2), (3). On the other hand, there is the Affidavit of Bogdan Joldzic, president of D & S Restoration, sworn to May 29, 1998 ("Joldzic Aff.") (included as Exhibit O to the Affidavit in Support of Motion, sworn to by Marc H. Pillinger, attorney for fourth-party defendants). In that Affidavit, Mr. Joldzic states that on August 12, 1994, his company was not doing any asbestos abatement work in the corridor leading to the law library. Joldzic Aff., ¶ 3. Viewing the evidence in favor of the nonmovant, it will be assumed for purposes of this motion that plaintiff was in fact exposed to asbestos on August 12, 1994.
[4]  Conditions which have been held to meet the constitutional standard of serious medical need include a brain tumor, broken pins in a hip, premature return to prison after surgery, diabetes requiring a special diet, a bleeding ulcer, and loss of an ear. Nance v. Kelly, 912 F.2d at 607 (citations omitted). Conditions that have been held to fall short of the constitutional standard include a mild concussion and broken jaw, a kidney stone, cold symptoms, headaches, a broken finger, a toothache, and "bowel problems." Id. at 607-08.
[5]  Courts in the Eastern District of Pennsylvania have routinely held that "mere exposure to asbestos in prison, and a prison official's failure to warn about the presence of asbestos, is insufficient as a matter of law to establish a constitutional violation." Robinson v. Vaughn, 91 Civ. 7646, 1992 WL 368461, at *2 (E.D.Pa. December 2, 1992). See also Alim v. Vaughn, 91 Civ. 4348, 1992 WL 209918 (E.D.Pa. August 19, 1992); Seymour/Jones v. Bricker, 90 Civ. 7757, 1990 WL 223171 (E.D.Pa. December 18, 1990).
[6]  Plaintiff's reliance on New York Labor Law § 904 is misplaced. Assuming a private cause of action against a landowner were permitted under that statute, any failure to warn claim would be grounded in state law, not federal. As this Court declines to exercise supplemental jurisdiction, such claims would have to be brought in state court.
[7]  In Turpin, the circuit court held that "a single, unusually brutal or egregious beating administered by a group of municipal employees may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amounting to deliberate indifference or `gross negligence' on the part of officials in charge." 619 F.2d at 202.


760 N.W.2d 469 (2009)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Herman Randall WATSON, Defendant-Appellant.
Docket No. 137702. COA No. 266832.
Supreme Court of Michigan.
February 24, 2009.

Order
On order of the Court, the application for leave to appeal the August 14, 2008 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion for miscellaneous relief is DENIED.


418 So.2d 583 (1982)
STATE of Louisiana
v.
Jeff L. SPENCE.
No. 81-KA-2398.
Supreme Court of Louisiana.
June 21, 1982.
Rehearing Denied September 3, 1982.
*585 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Premila Chumbley, Asst. Dist. Attys., for plaintiff-appellee.
Sam J. D'Amico, D'Amico & Curet, Baton Rouge, for defendant-appellant.
LEMMON, Justice.[*]
This is an appeal from a conviction on two counts of negligent homicide.[1] The principal assignments of error concern radar readings of automobile speed and the testing of the alcohol content of defendant's blood.[2]
Facts
While patrolling an interstate highway, State Trooper Jones observed a sports car break out from a pack of approaching cars in the opposite lane. His radar system clocked the speed of the vehicle at 76 miles per hour. The trooper turned across the neutral ground and pursued the speeding vehicle.
As they approached an exit, the pursued vehicle slowed down and moved to the right in order to take the exit ramp. When the trooper turned on his red signal lights in an attempt to pull the vehicle over, the driver accelerated to a speed of approximately 80 mph. The trooper also accelerated at first, but then slowed when he realized that the pursued vehicle would have difficulty entering *586 the heavy traffic on the boulevard at the exit. The vehicle continued at a high rate of speed through the yield sign at the boulevard. Unable to make the sharp turn, the driver attempted to brake and skidded through the northbound lane of the boulevard, hit the raised median, and literally flew into another vehicle. The impact killed two of the passengers in the other car.
Defendant, the driver of the sports car, was a 19-year-old student at Southeastern Louisiana University at the time of the accident. Before leaving Hammond to drive to Baton Rouge, defendant had drunk a quantity of "jungle juice". His blood alcohol content was measured at 0.06% two hours after the accident.
Assignment of Error No. 2
Defendant contends that the trial court erred in denying his motion to suppress the intoximeter test. Specifically, he alleges since the advice of rights form contained the outdated provision that "refusal to submit to this chemical test may also result in the loss of your vehicle registration and license plates", his consent to submit to the test was improperly coerced, and the test results should have been excluded from evidence.[3]
Although the form used in this case had not been updated to comport with the amended statute, the form correctly advised defendant that his license would be suspended if he refused (R.S. 32:667) and that his refusal would be used against him in court (R.S. 32:666). Moreover, his constitutional rights were fully explained to him. Under these circumstances, the allegedly inaccurate advice of possible additional consequences was not sufficient to require suppression of the test results.
Defendant also points out that the advice of rights form contained the notation, "if you refuse the test until you can talk to a lawyer, you will still lose your license". He argues that placement of this clause immediately after the listing of constitutional rights gives the arrested person the impression that he has no such rights, as well as coercing him into submitting to the test.
The clause cannot reasonably be interpreted as implying that an arrested person does not have a constitutional right to consult a lawyer. It merely informs a person that he cannot delay taking the test until he has consulted a lawyer, without incurring the risk that he will lose his license.
The reason for this rule is obvious. The relevant point in time for measuring blood-alcohol content is immediately after the driver is stopped, because the blood-alcohol percentage decreases with the passage of time. Were the result otherwise, the driver could effectively defeat the state's efforts to conduct a prompt test by requesting that *587 he be given the opportunity to consult a lawyer.
Finally, defendant contends that he could not make a knowing and intelligent decision on submitting to the test because the form did not advise him of the consequences of submission, namely, that the results of the test could be used as evidence against him.
R.S. 32:661(C) does not require such a warning, but only requires that defendant be advised of the consequences of a refusal to submit. The right against self-incrimination is not implicated in the gathering of physical evidence, such as a blood sample for scientific testing, and a warning that such evidence can be used in court is not constitutionally required. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
This assignment of error lacks merit.
Assignment of Error No. 4
Defendant contends that the trial court erred in admitting radar evidence of the speed of defendant's vehicle without a proper foundation. C.Cr.P. Art. 773. He further submits that the trial court erroneously took judicial notice of the reliability of radar evidence. Defendant argues that in order to permit the introduction of the results of radar devices, it is necessary first to lay a proper foundation by expert testimony as to the accuracy of the particular type of instrument used by the officer.
On direct examination, Trooper Jones was asked to describe the type of radar equipment in his vehicle. Defense counsel was overruled when he objected to the introduction of any evidence concerning the radar equipment without the proper foundation.
The trooper then proceeded to explain in detail how his equipment worked, showing a vast and comprehensive knowledge of the system. He testified that he was qualified by the Federal Communications Commission to operate a radar system, that he was also certified by Kustom Systems, the manufacturer of this particular unit that had been selected and furnished for his use by the Office of State Police, and that he was even responsible for training other state troopers in the use and operation of the radar unit. He further testified that he tested the system by means of tuning forks prior to each shift of duty and that on this particular evening he calibrated and tested his unit, which was in perfect working order.
When the state then asked Jones the speed of defendant's vehicle as shown on his radar device, defense counsel objected to the admissibility of such evidence. The trial court retired the jury and allowed defense counsel to question the witness on the foundation for admissibility of the evidence. After extensive cross-examination, the trial judge interrupted when defense counsel asked the witness a hypothetical question concerning the functioning of the radar device in a situation involving approaching vehicles, noting that the witness could not testify about hypothetical situations without being qualified as an expert.
The jury was brought back in, and the state continued to lay a foundation. Defense counsel objected again when the witness was asked the speed of the vehicle, and the objection was overruled.
The scientific reliability of radar as a recorder of speed is a proper subject for judicial notice.[4] See Annotation, Proof, By Radar or Other Mechanical or Electronic Devices, of Violation of Speed Regulations, 47 A.L.R.3d 822 (1973) and the cases cited therein. The accuracy of radar equipment as a method of measuring speed is so widely known and commonly accepted that it is unnecessary to call an expert witness in each case to testify as to this fact. Defense counsel in the present case conceded as much, but attacked the accuracy and reliability of the particular instrument used in this case.
*588 The accuracy of a particular radar unit can be established by showing that the operator tested the device in accordance with accepted procedures to determine that the unit was functioning properly and that the operator was qualified by training and experience to operate the unit.
The use of calibrated tuning forks, furnished by the manufacturer with each unit, is an accepted method of testing to determine that the set is operating properly and measuring accurately. Before he went on duty each day, Trooper Jones tested the set for accuracy with the tuning forks. He testified that on the day of this incident he tested the unit and determined that it was functioning properly.
As to the qualifications of the operator, Trooper Jones testified in detail as to his vast training and experience. Additionally, he was certified to operate the radar equipment by the manufacturer and by the Federal Communications Commission, as noted earlier.
The trial judge properly required the state, upon objection by defense counsel, to lay a foundation for the admissibility of the measurement by radar of defendant's speed, and correctly concluded that an adequate foundation had been established. Accordingly, there is no merit to the assignment complaining of the admission of the radar evidence.
Assignment of Error No. 5
Defendant contends that the trial court erred in denying his motion for a mistrial when the trooper testified that defendant had resisted arrest. Specifically, defendant argues that such testimony amounted to a legal conclusion or opinion by the witness in violation of R.S. 15:463, which limits testimony to facts known by the witness.
On direct examination, the officer described what he saw and did while at the scene, as follows:
"I stopped by Mr. Spence's vehicle again. And, I placed handcuffs on his wrists and one around the steering column because I was not able to watch him continually and he was sitting in the car. He was in a dazed condition. I didn't notice any cuts or lacerations on his face. So I justso he would not leave the scene because thatwhat had happened here he had been resisting by flight when ."
Defense counsel objected and moved for an admonition and a mistrial, arguing that the officer had given a legal opinion that defendant's actions constituted the offense of resisting an officer. The trooper's statement, in context, was merely an explanation of his decision to handcuff defendant to keep him from leaving the accident, because defendant had previously tried to evade pursuit. The jury could hardly have viewed the testimony as expressing the officer's opinion of defendant's guilt of an uncharged crime.
Defendant also contends that the trooper's statement was an impermissible reference to another crime in violation of C.Cr.P. Art. 770. Defendant's conduct described by the officer was part of the res gestae, which is always admissible. R.S. 15:447 and 448.
Accordingly, the trial court properly denied defendant's motion for a mistrial.
Assignment of Error No. 10
Defendant contends that the trial court erred in allowing Trooper Jones to testify on redirect examination that alcohol contributed to the accident. Defendant contends that such testimony was in violation of R.S. 15:463, which provides that a witness can testify only as to facts within his knowledge and may not give an impression or opinion.
During cross-examination, Trooper Jones was asked whether he would have arrested defendant for DWI, had he been an investigating officer and not merely a witness to the collision. Trooper Jones answered affirmatively. When defense counsel attempted to impeach him with a statement he had made during the preliminary hearing, Trooper Jones explained the discrepancy in his statements. Defense counsel's questioning continued as follows:

*589 "Q. Officer the fact remains that you were an officer on the scene. You had chased this man and youuhknew good and well that what you should have done if you drive while intoxicated to have charged him with DWI, isn't that true?
"A. No, sir, it was a city police investigation, sir. I was simply a witness.
"Q. Suppose you had stopped him and you went up to him and he smelled of alcohol without the accident, wouldn't youwould you or would you not have charged him with a DWI?
"A. As I stated at a preliminary examination, no, I would not have."
Defense counsel apparently was not merely questioning the officer about defendant's intoxication for impeachment purposes, but for the purpose of getting the officer to admit that defendant did not appear intoxicated at the time of the accident.[5] Under such circumstances, it was entirely proper for the state on redirect examination to elicit further testimony on the trooper's perception of defendant's alcohol related behavior. Furthermore, even if the specific question calling for an opinion was improper, the officer's answer could hardly be grounds for reversal of the conviction.
Assignment of Error No. 13
Defendant contends that the trial court erred by not allowing him to question Officer John Barker concerning the authenticity and reliability of the auto-intoximeter tests.
Officer Barker of the Baton Rouge City Police testified for the state as to his training and experience in operating the auto-intoximeter machine. The court informed defendant that he would be entitled to cross-examine the witness as to the foundation for the administering of this particular test before the witness would be allowed to answer any question concerning the reading on the machine when defendant was tested. At one point in the cross-examination, defendant asked the witness whether he had a certificate from the manufacturer as to the intoximeter's authenticity. The state objected, stating that the witness had not been offered as an expert in the history of the machine, but merely as the police officer who conducted the alcohol testing. The court sustained the objection and reminded defense counsel to limit his examination to foundation-related questions and to questions concerning compliance with the regulations of the Department of Public Safety.
Defendant correctly argues that the question of the certification of the machine's reliability was a proper subject of inquiry on cross-examination. However, a certified inspector of these machines, Lawrence Efferson, had testified earlier regarding the recertification of the machine, and the current recertification form was introduced into evidence. Officer Barker simply testified as to his operation of the machine, and he presented the proof of his certification to operate the machine.
We conclude there was no error in the trial court's refusal to allow defense counsel to question this particular witness on the certification of the machine.
Assignment of Error No. 20
Defendant contends that the trial court erred by not instructing the jury to disregard the results of the auto-intoximeter test, because there was no expert testimony on the interpretation of the machine's reading presented by the state. Specifically, defendant argues that it was reversible error to allow the jury to consider the fact that defendant had a 0.06% blood-alcohol level.
Officer Barker, who administered the breath test to defendant, testified that the results of the test indicated that defendant had a blood-alcohol content of 0.06 grams percent.[6] When the witness was asked what a 0.06% reading meant in terms of "grams percent", defense counsel objected, stating that the witness was only qualified *590 to testify as to the machine reading and not to interpret the results. The court sustained the objection. Defense counsel then requested that the court instruct the jury to disregard the test results. The court denied this request, and defendant now argues that it was reversible error for the jury to consider the fact that defendant had a 0.06% blood-alcohol level.
The essence of defendant's contention is that the test results should not have been admitted, unless the state produced expert testimony to interpret them.
The present case is distinguishable from State v. Williams, 375 So.2d 931 (La.1979).[7] In this case, the state did not use the presumption that a person with 0.10% or more is under the influence of alcoholic beverages, because defendant's blood-alcohol level was nowhere near the 0.10% legal presumption level.
The trial judge did not instruct the jury that a finding of 0.10% gave rise to a presumption that the person was under the influence of alcoholic beverages, as occurred in State v. Williams, above. The jury was simply informed that defendant had alcohol in his blood, a fact which could properly be considered with other competent evidence in determining whether defendant was under the influence of alcohol. Moreover, the trial judge did not instruct the jury by reading the arguably unconstitutional presumption in the second paragraph of R.S. 14:32. Rather, he properly informed the jury that "[i]f you find that a person violated a safety law and thereby injured another, you may but are not required to infer that he was criminally negligent". Under these circumstances, there was no prejudice to defendant in admitting the test results without expert testimony interpreting the results.
The convictions and sentences are affirmed.
DIXON, C. J., concurs with reasons.
*591 DIXON, Chief Justice (concurring).
I respectfully concur. The results of the blood-alcohol test should not have been admitted, because of the ambiguous, erroneous and unconstitutional threat of the consequences of seeking legal advice. The suppression of the test results, however, would probably not have affected the verdict.
NOTES
[*]  Judges William Norris, III and Fred C. Sexton, Jr. of the Second Circuit Court of Appeal and Robert L. Lobrano of the Fourth Circuit Court of Appeal participated in this decision as justices pro tempore with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.
[1]  Defendant was sentenced to three years on each count, to run concurrently. The sentences were suspended, and defendant was placed on three years of supervised probation with the following conditions: (1) his driving privileges were suspended for one year; (2) he was required to make restitution to the victims' families in the amount of $50 per month for three years; (3) he was required to do volunteer work for eight hours per week in an authorized medical treatment facility preferably in the emergency room; and (4) he was required to remain in pursuit of his college education.
[2]  Defendant's other assignments of error involve only settled principles of law and are treated in an unpublished appendix which is attached to this opinion and is a part of the official record.
[3]  R.S. 32:661 outlines the procedures that must be followed before the results of a chemical test may be used at trial. Section 661(C) provides:

"C. When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal. In addition, the law enforcement officer shall have the person sign a standard form advising such person of his constitutional rights; the law enforcement officer shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test, provided however that a single combination of the two forms may be used. If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form. If the above procedure is not complied with, the results of the test or any reference to it is inadmissible into evidence in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages."
R.S. 32:896 formerly provided that the registration shall be suspended for all motor vehicles registered in the name of a person refusing to submit to the test, unless that person has or provides proof of financial responsibility with respect to all motor vehicles registered by him. That statute has been amended, but still provides that if a person refuses to submit to the test, the suspended license shall not be reinstated or reissued unless that person provides proof of financial responsibility with respect to all motor vehicles registered by him.
[4]  The trial judge in this case stated, outside the presence of the jury, that he was taking judicial notice of the reliability of radar.
[5]  Intoxication, with its attendant behaviorial manifestations, is an observable condition about which a witness may testify. State v. Neal, 321 So.2d 497 (La.1975).
[6]  R.S. 32:662 provides:

"A. The chemical test or tests as provided for by this Part shall be subject to the following rules and shall be administered as provided for hereafter:
"1. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person's blood at the time alleged as shown by chemical analysis of the person's blood, urine, breath or other bodily substance shall give rise to the following presumptions:
"a. If there was at that time 0.05 per cent or less by weight of alcohol in the person's blood, it shall be presumed that the person was not under the influence of alcoholic beverages.
"b. If there was at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the person's blood, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages.
"c. If there was at that time 0.10 per cent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of alcoholic beverages.
"B. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.
"C. The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under influence of alcoholic beverages.
"This section has no application to a civil action or proceeding."
[7]  In State v. Williams, above, this court held that the legal presumption of intoxication arising from a finding of 0.10% or more of alcohol in a person's blood could not be used in a negligent homicide case, because that presumption, combined with the presumption in R.S. 14:32 that violation of a statute is presumptive evidence of criminal negligence, improperly shifts the burden of proof to defendant.

The court noted, however, that blood-alcohol test results may be admissible, although the combined presumptions are not. The court stated:
"Nor do we hold that the PEI test result itself is necessarily inadmissible, if otherwise proper under the rules of evidence, including (assuming indeed it is admissible under evidence law) the requirement of a proper foundation of the reliability of the test and the use of sworn expert opinion testimony to evaluate its results, subject to cross-examination." Id. at 936.
Thus, the state was not improperly relieved by a combination of statutory presumptions of its burden of proving beyond a reasonable doubt the essential elements of criminal negligence.


888 F.2d 1383
Appeal of Williams (Rodney), a/k/a Stevenson (Rodney)
NO. 89-3341
United States Court of Appeals,Third Circuit.
OCT 24, 1989

1
Appeal From:  W.D.Pa.

2
AFFIRMED.


32 P.3d 250 (2001)
Salvador Delgado GUIJOSA, a single man; Rogelio Hernandez Guijosa, a single man; and Ricardo Hernandez, a minor, through his Guardian ad Litem, Rogelio Hernandez Guijosa, Petitioners,
v.
WAL-MART STORES, INC., a corporation, registered in Washington; David C. Opfer and Jane Doe Opfer, husband and wife, David C. Opfer, individually, and both as a marital community; and Rhonda Liburdi and John Doe Liburdi, wife and husband, Rhonda Liburdi, individually, and both as a marital community, Respondents.
No. 70102-4.
Supreme Court of Washington, En Banc.
Argued June 14, 2001.
Decided October 4, 2001.
*251 MacDonald, Hoague & Bayless, Timothy Kent Ford, Seattle, Hoss & Wilson-Hoss, Robert Wilson-Hoss, Shelton, for Petitioners.
D. Michael Reilly, Michael B. King, Steven D. Jensen of Lane Powell Spears Lubersky, L.L.P., Seattle, for Respondents.
IRELAND, J.
Petitioners sought review of the Court of Appeals' decision affirming the trial court's judgment in favor of Wal-Mart as to claims of discrimination, malicious prosecution, false imprisonment, battery, and violations of the Consumer Protection Act, chapter 19.86 RCW. At issue is whether the trial court correctly granted a motion for judgment as a matter of law, setting aside the jury's verdict, on the claim of Consumer Protection Act violations. The record does not contain substantial evidence to sustain the jury's verdict that Wal-Mart violated the Consumer Protection Act. Therefore, judgment as a matter *252 of law setting aside the jury's verdict was correctly granted, and we affirm the Court of Appeals' ruling.

FACTS
On March 16, 1995, Salvador Delgado Guijosa (Delgado), Rogelio Hernandez Guijosa (Guijosa), and Ricardo Hernandez (Hernandez)[1] went to the Wal-Mart store in Shelton, Washington to shop for school clothes for Hernandez, who was a high school student.
In the store, the men noticed a display bin of baseball hats priced at $2.50 each. Trial testimony conflicted about whether Delgado and Guijosa were wearing hats when they entered the Wal-Mart store. A store sales associate testified that when the trio approached the bin, only Hernandez was wearing a hat, but that when they walked away from the bin, they each wore a hat. The men testified that all three of them had worn hats into the store. They tried on hats from the bin, and Delgado decided to buy two of them.
After Delgado paid for the two hats at the checkstand and before the men left the store, they were stopped by Rhonda Liburdi (Liburdi), a loss prevention associate for Wal-Mart.[2] Liburdi, who had been observing the men since they entered the store, accused them of taking the hats they were wearing without paying for them.
Liburdi asked David Opfer (Opfer), another Wal-Mart employee, to assist her. Liburdi and Opfer escorted the three men to the back office area of the store, and Liburdi took the hats the men had been wearing. Guijosa, the only one of the three who spoke English well, told Liburdi that the hats were theirs and that the hat his brother had been wearing was a type not sold at Wal-Mart.
The parties agree that they had difficulty communicating with one another. Guijosa testified that he tried to explain to Liburdi that he had bought the hat Delgado was wearing some weeks earlier and that he had purchased the hat he was wearing at Wal-Mart the previous day. When Liburdi asked for identification, Guijosa declined and advised the other two men not to provide information except to the police.
Liburdi contacted the Shelton Police Department. Officer Michael Hudnell (Hudnell) responded and spoke with the parties. Liburdi told Hudnell that she had seen Guijosa remove the price tag and place one of the store's hats on his head.[3] She stated that the hat worn by Delgado was also taken without being purchased.
Hudnell found the three men cooperative. Based on Liburdi's allegations, Hudnell wrote citations for theft to Delgado and Guijosa. Hernandez was not cited, and his hat was returned to him.[4] Liburdi "trespassed" all three men, banishing them from the Wal-Mart store.
Liburdi testified at trial that she had completely forgotten whatever she had done to review the store's videotapes of the alleged shoplifting incident and that the tapes had been recycled. Plaintiffs claim a sign was posted stating it was store policy that such tapes would be used as evidence in criminal prosecutions. However, the sign was not admitted in evidence, and no evidence was presented as to what the sign actually said.
Guijosa located the receipt for the hat he said was purchased the day before the alleged shoplifting incident.[5] Following two court appearances, the theft charges against Delgado and Guijosa were dismissed with prejudice.

*253 PROCEDURAL HISTORY
Delgado, Guijosa, and Hernandez (plaintiffs) then filed a civil complaint against Wal-Mart Stores, Inc., Liburdi, and Opfer (collectively, Wal-Mart), alleging assault and battery, false imprisonment, malicious prosecution, deprivation of civil rights, and violations of the Washington Consumer Protection Act (CPA). Wal-Mart denied all claims.
The case was tried in Mason County Superior Court on August 24-28, 1998. The 12-member jury found that Wal-Mart proved by a preponderance of the evidence that they detained the plaintiffs for a reasonable time and on reasonable grounds. Therefore, Wal-Mart was allowed to assert the shopkeeper's privilege under RCW 4.24.220, and the jury found for Wal-Mart on the false imprisonment and battery claims. The jury also found for Wal-Mart on the malicious prosecution claim.
In addition, the jury found that Wal-Mart did not discriminate against the plaintiffs. Finally, it found that Wal-Mart did violate the CPA with respect to Delgado and Guijosa.[6]
After the verdicts were read, the court sent the jury back to the jury room. Plaintiffs' counsel initially stated that the verdicts regarding the claims of discrimination and violation of the CPA were not inconsistent. Wal-Mart's counsel asserted that the verdicts were inconsistent and argued that the remedy should be a judgment notwithstanding the verdict on the CPA claim. Plaintiffs' counsel stated that any objections to the verdict as inconsistent would be waived by a failure to reconcile the verdict before the jury was discharged. After both parties declined the court's offer to allow reargument, the court discharged the jury.
Wal-Mart subsequently filed a motion for judgment as a matter of law under CR 50(b), asserting that without a finding of discrimination, there was insufficient evidence to find violations of the CPA.
The trial court granted Wal-Mart's motion, setting aside the jury's verdict on the CPA claim, and commented as follows:
It is this Court's view that having tried the case and listened to the evidence being produced that I cannot find that there is sufficient evidence presented by the Plaintiff to support the determination that there was a violation of the Consumer Protection Act, given the determination that there was no discrimination practiced against the [Plaintiffs], and that the [Defendants] had been justified by the Statutory defense in taking the actions that they had.
It would be my impression that the jurors were dissatisfied with the statements of Ms. Liburdi. And I agree that there were substantial inconsistencies developed by the Plaintiff throughout regarding Ms. Liburdi's positions, plural, that had been taken.
However, those questions of evidence produced by the Plaintiffs do not give rise to sufficient facts to support a finding that the Consumer Protection Act was violated, and that deceptive acts had been practiced that were capable of deceiving a substantial portion of the public, thus [a]ffecting the public interest....
Clerk's Papers (CP) at 13-15; Excerpt of Report of Proceedings (RP) at 670.
In its Order Granting Defendants' Motion for Judgment as a Matter of Law, the trial court made findings, including the following:
4. There was no evidence to support a verdict against defendants for Consumer Protection Act violation in the absence of a "per se" violation which would have required a finding of discrimination. Specifically, in the absence of a "per se" violation, there was no evidence to establish "the defendant engaged in an unfair and deceptive act or practice" or "that the act or practice affected the public interest."
5. As a matter of law, neither the evidence presented nor any reasonable inference from the evidence supports *254 the jury's verdict finding a Consumer Protection Act violation by defendants.
CP at 14-15.
Judgment was entered in favor of defendants on all claims.
Plaintiffs appealed the trial court's judgment, and the Court of Appeals affirmed the judgment in all respects. Guijosa v. Wal-Mart Stores, Inc., 101 Wash.App. 777, 6 P.3d 583 (2000).
This Court then granted plaintiffs' petition for review of the Court of Appeals' decision. Guijosa v. Wal-Mart Stores, Inc., 142 Wash.2d 1016, 16 P.3d 1263 (2001).

ANALYSIS
Judgment as a Matter of Law
CR 50(a)(1) provides as follows regarding motions for judgment as a matter of law:
If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim ... that cannot under the controlling law be maintained without a favorable finding on that issue.
Motions for directed verdict and motions for judgment notwithstanding the verdict were renamed "motions for judgment as a matter of law" effective September 17, 1993. Litho Color, Inc. v. Pac. Employers Ins. Co., 98 Wash.App. 286, 298 n. 1, 991 P.2d 638 (1999).
Standard of Review
"Granting a motion for judgment as a matter of law is appropriate when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party." Sing v. John L. Scott, Inc., 134 Wash.2d 24, 29, 948 P.2d 816 (1997). "Such a motion can be granted only when it can be said, as a matter of law, that there is no competent and substantial evidence upon which the verdict can rest." State v. Hall, 74 Wash.2d 726, 727, 446 P.2d 323 (1968). "Substantial evidence is said to exist if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise." Brown v. Superior Underwriters, 30 Wash. App. 303, 306, 632 P.2d 887 (1980).
When reviewing a motion for judgment notwithstanding the verdict (judgment as a matter of law), this Court applies the same standard as the trial court. Goodman v. Goodman, 128 Wash.2d 366, 371, 907 P.2d 290 (1995).
Jury Instructions
Based on the Washington Law Against Discrimination, chapter 49.60 RCW, the jury was instructed regarding the plaintiffs' discrimination claim as follows:
Instruction No. 20
On their claims of unlawful discrimination, each plaintiff has the burden of proving each of the following propositions as to each defendant:
First, that the defendant denied the plaintiff the right to full enjoyment of the accommodations, advantages, facilities, or privileges of the Wal-Mart Store;
Second, that the defendant did so on the basis of race, color or national origin.
Third, that the defendant's actions caused injury or damage to the plaintiff.
Instruction No. 21
The denial of public accommodations on the basis of race, color or national origin occurs when race, color or national origin is a significant or substantial factor in the defendant's decision to deny the plaintiff the full enjoyment of a public accommodation. Plaintiff does not have to prove that race, color or national origin was the only factor or the main factor in the decision, or that plaintiff would not have been denied full enjoyment of the accommodations but for his race, color or national origin.
Instruction No. 22
A violation of the law against discrimination in public accommodations is an unfair or deceptive act or practice in the conduct of the defendant's trade or commerce. A violation of this statute also affects the public interest. The law against discrimination provides in relevant part as follows:

*255 The right to be free from discrimination because of race, creed, color, national origin ... is recognized as and declared to be a civil right. This right shall include ... [t]he right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort....
With respect to this statute, the state legislature has declared as follows:
practices of discrimination against any of its inhabitants because of race, creed, color, national origin, ... are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.
If you find that a violation of this statute has occurred, therefore, you must find that the first three elements of a Consumer Protection Act violation have been proved.
CP at 206-08; RP at 624-25.
Washington's CPA provides that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" are unlawful. RCW 19.86.020. To establish a claim for violation of the CPA, a private plaintiff must prove (1) an unfair or deceptive act or practice, (2) occurring in the conduct of trade or commerce, (3) impacting the public interest, and (4) proximately causing injury to the plaintiff in his or her business or property. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 785-93, 719 P.2d 531 (1986).
Jury Instruction 23 tracks the Hangman Ridge elements:
Instruction No. 23
On their claim of a Consumer Protection violation each plaintiff has the burden of proving each of the following propositions with respect to each defendant:
First, that the defendant engaged in an unfair and deceptive act or practice;
Second, that the act or practice occurred in the conduct of defendant's trade or commerce;
Third, that the act or practice affected the public interest;
Fourth, that the plaintiff was injured in either his business or his property; and
Fifth, that the defendant's act or practice was a proximate cause of plaintiff's injury.
CP at 209; RP at 625.
The parties did not object to the jury instructions. RP at 616. Instructions to which no exceptions are taken become the law of the case. Ralls v. Bonney, 56 Wash.2d 342, 343, 353 P.2d 158 (1960).
Jury Instruction 20 provides the elements necessary to find Wal-Mart liable for discrimination. Jury Instruction 22 states that if the jury finds Wal-Mart liable for discrimination, then the first three elements of a claim for violation of the CPA are satisfied. Finally, in Jury Instruction 23, the elements necessary to find a violation of the CPA are set out.
Verdict Form and General Verdicts
The verdict form in this case contains yes/no questions, which are to be answered by the jury, about each of the plaintiffs' claims. The questions ask whether the defendants are liable under each claim, i.e., whether the defendants falsely imprisoned the plaintiffs, whether the defendants committed battery or malicious prosecution, whether the defendants discriminated against the plaintiffs, and whether the defendants violated the CPA.
The Court of Appeals states that "`answers to interrogatories are the jury's findings of fact'" and treats the answers to the discrimination questions as a special verdict. Guijosa v. Wal-Mart Stores, Inc., 101 Wash. App. at 800, 6 P.3d 583 (quoting 14 Lewis H. Orland & Karl B. Tegland, Washington Practice: General Verdicts with Interrogatories § 289(6) (1996)). However, the answers actually resolve the ultimate questions on the discrimination and CPA claims. Therefore, the jury's answers in both claims constitute general verdicts because "the jury pronounces generally upon all or any of the issues in favor of either the plaintiff or defendant." CR 49.
*256 In its general verdicts, the jury answered "no" as to whether the defendants discriminated against the plaintiffs and "yes" when asked whether the defendants had violated the CPA. CP at 181-82.
Discrimination Claim
Plaintiffs contend that the trial court erred because its ruling was premised on a determination that there was no discrimination practiced against the plaintiffs. However, based on the language of the verdict form, there can be no other reasonable interpretation:
V. Discrimination
Did the following defendants discriminate against Salvador Delgado Guijosa:
a.  Rhonda Liburdi         Yes_____   No  X
b.  Wal-Mart Stores, Inc.  Yes_____   No  X
If your answer to either of the above questions is "yes." state the amount of compensatory damages you award to Salvador Delgado Guijosa on his claim of discrimination:
                             $________________
Did the following defendants discriminate against Rogelio Hernandez Guijosa:
a.  Rhonda Liburdi         Yes_____   No  X
b.  Wal-Mart Stores, Inc.  Yes_____   No  X
If your answer to either of the above questions is "yes," state the amount of compensatory damages you award to Rogelio Hernandez Guijosa on his claim of discrimination:
                             $_______________
Did the following defendants discriminate against Ricardo Hernandez:
a.  Rhonda Liburdi          Yes_____   No  X
b.  Wal-Mart Stores, Inc.   Yes_____   No  X
If your answer to either of the above questions is "yes," state the amount of compensatory damages you award to Ricardo Hernandez on his claim of discrimination:
                             $_______________
CP at 181-82.
The jury determined that the defendants categorically did not discriminate against any of the plaintiffs. Consistent with this verdict, no compensatory damages were awarded. Plaintiffs argue that the instructions permit the jury to find discrimination apart from the law against discrimination in public accommodations. The argument ignores the unrestricted language of Verdict V, which finds no discrimination of any kind by Wal-Mart.
Violations of the Consumer Protection Act
After the jury found no discrimination, the verdict form next directed consideration of the CPA claim. Under Jury Instruction 22, a finding of discrimination by Wal-Mart would satisfy the first three elements of a claim for violation of the CPA. The Court of Appeals concluded that the jury could only find a violation of the CPA if it also found Wal-Mart liable for discrimination. However, the instructions do not limit the jury to finding a CPA violation only if it also finds discrimination. Rather, if there were facts in evidence of other acts or practices, the jury could have considered all of the propositions set out in Jury Instruction 23 (the Hangman Ridge elements) in relation to such acts or practices. The jury's verdict of CPA violations was determinable separately from its verdict that Wal-Mart did not discriminate. The general verdicts on the two claims are independent; they are not inconsistent:
VI. Violation of the Consumer Protection Act
Did Rhonda Liburdi or Wal-Mart Stores, Inc. violate the Consumer Protection Act with respect to Salvador Delgado Guijosa:
                        Yes  X     No____
Did Rhonda Liburdi or Wal-Mart Stores, Inc. violate the Consumer Protection Act with respect to Rogelio Hernandez Guijosa:
                        Yes  X     No____
CP at 182.
Plaintiffs assert that the failure to object to an alleged inconsistency in verdicts before the jury is discharged waives any later argument based on that inconsistency. However, the rule requiring a party to bring inconsistent *257 verdicts to the court's attention does not apply in this case because the jury's general verdicts are not inconsistent.
"For a general verdict, `[t]he determinative issue is whether there was evidence or reasonable inferences arising therefrom to sustain a verdict in plaintiff's favor.'" Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 131, 875 P.2d 621 (1994) (quoting Washburn v. Beatt Equip. Co., 120 Wash.2d 246, 261, 840 P.2d 860 (1992)). Wal-Mart properly brought its motion for judgment as a matter of law to challenge the validity of the jury's general verdict that Wal-Mart violated the CPA, arguing that there was insufficient evidence to support that verdict.
The trial court found that neither the evidence in the record nor any reasonable inference from that evidence satisfied all of the Hangman Ridge elements. We agree.
The first element requires that a defendant be engaged in "an unfair and deceptive act or practice." Plaintiffs did not allege or prove any act or practice, other than discrimination, that violated the CPA. Although the jury was free to determine what could constitute an unfair and deceptive act or practice, there was simply none asserted or claimed, other than discrimination. Plaintiffs suggest that the deceptiveness of witnesses testifying for Wal-Mart could have constituted an unfair or deceptive practice. However, the act or practice must relate to out-of-court conduct. Lies during court testimony about prior events, while reprehensible, would not constitute a CPA violation. Rather, intentional lies under oath could result in a charge of perjury. In addition, plaintiffs claim that a posted notice stated it was store policy to use videotapes as evidence in criminal prosecutions, and this notice constituted a deceptive act or practice. There was no evidence as to what the notice actually said. In addition, there was no evidence of a pattern or practice of withholding such video evidence. Therefore, this claim is not supported by substantial evidence in the record.
Given that the jury accepted the shopkeeper defense and found for defendants on all of the conduct claimed to be unfair and deceptive, plaintiffs presented no evidence, absent discrimination, to prove the third element that defendants' act or practice impacted the public interest. Even in closing argument, counsel for plaintiffs spoke only of discrimination with regard to the CPA:
The next claim, discrimination. I've talked to you about that. And the final claim is a violation of the Consumer Protection Act. And the Instructions tell you on that that in this case that means discrimination. If there's discrimination by any Wal-Mart employee, that's a violation of the Consumer Protection Act.
Suppl. Partial Report of Proceedings at 67.
The jury's determination of no discrimination eliminated the only basis presented by plaintiffs at trial for finding such a violation, and "a verdict cannot be founded on mere theory, speculation or conjecture." Lamphiear v. Skagit Corp., 6 Wash.App. 350, 356, 493 P.2d 1018 (1972).

CONCLUSION
The record presents no substantial evidence or reasonable inference to support the jury's verdict that Wal-Mart violated the CPA. Therefore, the trial court correctly granted judgment as a matter of law, setting aside that verdict. We affirm the Court of Appeals' ruling that Wal-Mart's motion for judgment as a matter of law on the CPA claim was correctly granted.
ALEXANDER, C.J., and SMITH, JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS and OWENS, JJ., concur.
NOTES
[1]  Guijosa and his younger brother Hernandez are the nephews of Delgado.
[2]  Liburdi is now deceased.
[3]  Liburdi testified at trial that she had located the price tag while the men were detained and that she had shown it to Guijosa and Hudnell. However, it was not labeled as evidence or listed on Hudnell's property narrative report. Hudnell testified that he did not remember seeing any price tags. Guijosa testified that he had not removed a price tag.
[4]  At trial, Liburdi denied that Hernandez had been apprehended. However, Hudnell testified that he understood that all three men had been detained, and that Liburdi only later became convinced that the hat Hernandez had been wearing was not store property.
[5]  Liburdi asserted that the men had stolen the hats even after the receipt was produced. It was shown that the hat she confiscated from Delgado was soiled and worn.
[6]  The parties stipulated as to damages on the CPA claim. In closing argument, plaintiffs' counsel pointed out that the jury was not being asked to determine damages in the CPA claim; he stated that CPA damages are limited to property and "all we're asking under the Consumer Protection Act is to give them their hats back." Suppl. Partial Report of Proceedings at 68. A prevailing plaintiff in a CPA claim is entitled to costs and attorney fees. RCW 19.86.090.


19 Mich. App. 250 (1969)
172 N.W.2d 512
PEOPLE
v.
COLEMAN
Docket No. 3,765.
Michigan Court of Appeals.
Decided October 1, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
George C. Parzen, for defendant.
*252 Before: J.H. GILLIS, P.J., and R.B. BURNS and KELLEY,[*] JJ.
KELLEY, J.
On appeal of his jury conviction of assault with intent to rape,[1] defendant makes three claims.
First: The waiver of the juvenile court, on June 15, 1966, to recorder's court where no findings and reasons therefor were filed until December 12, 1966, did not satisfy the equal protection of law provision of the Federal Constitution and the juvenile court act.
At the time of the alleged offense on December 8, 1965, defendant's age was 16 years, 5 months. Within two days thereafter defendant had been arrested, placed in the Wayne County Youth Home and fingerprinted. It appears that he was already a ward of the probate court and was involved in another proceeding.
Repeatedly, defendant cites Kent v. United States (1966), 383 US 541 (86 S Ct 1045, 16 L Ed 2d 84), a case which reversed a criminal conviction on the ground that the waiver of Kent, a juvenile, for trial in criminal court was invalid. Construing a waiver provision similar to ours,[2] the Supreme Court held:
"[A]s a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel." 383 US p 557. *253 After careful review of the record,[3] we are of the opinion that the waiver proceedings were in accord with both due process and our juvenile court act. A waiver hearing was held pursuant to CL 1948, § 712A.4 (Stat Ann 1962 Rev § 27.3178[598.4]), at which defendant, his mother, and his counsel were present. Defendant's case history was fully reviewed by the probate judge, and counsel for defendant was given access to all social records. Following the waiver hearing, the probate judge made an order waiving jurisdiction and stated on the record his reasons therefor. Defendant's counsel not only knew the reasons for waiver but also could have obtained a transcript of the waiver proceedings. Defendant has not shown any prejudice or detriment resulting from the filing of the statement the following December.
Defendant also relies upon People v. Roberts (1961), 364 Mich 60. In that case two policemen arrested and questioned a 15-year-old boy for the murder of a young woman. His confession, thereby induced, constituted the only evidence offered at the preliminary examination linking defendant to the murder. Defendant contended that failure of the officers to take him immediately before the juvenile division of the probate court should deprive the prosecution of the use of such confessional statements made to police officers during defendant's interrogation at a police station. The circuit court's denial of defendant's motion to quash was affirmed by an equally divided court. The instant case does not involve *254 questioning, but rather the taking of fingerprints. CLS 1961, § 28.243 (Stat Ann 1969 Rev § 4.463), which requires police officers to take fingerprints of arrested persons, does not exclude juveniles from its operation.
Second: There was insufficient evidence to sustain a conviction.
Defendant neither testified nor produced any witnesses. No witness could positively identify defendant by sight as the assailant.
As the 12-year-old victim was walking home from school, a male person placed a hand over her mouth, told her to cooperate or she would be killed, and placed a paper bag over her head. He then forced her to walk some distance to a remote courtyard with no doors opening off it, situated alongside an apartment building. An investigating officer thus described the path followed:
"The area pointed out to me by [the victim] was we had to go in an alley and you walk up the alley and to your left was a set of stairs that went down under a building. It was a tunnel affair going under the building. You went down the stairs through the tunnel and up into another, up another flight of stairs and you were then in a courtyard sort of."
The victim described actions by her assailant which constituted, at the very least, an attempt to rape. After he ran out of the courtyard, she threw down the bag and also ran out.
Within a matter of minutes she led police to the scene where she showed them the bag. Both a fingerprint and part of a palm print found on the bag were those of defendant.
A woman testified that she saw a boy run out of the alley, closely followed by the victim. Her description *255 of his build, age and race matched those of the defendant.
Undisputed evidence clearly established the commission of the crime charged. Even though circumstantial, there was sufficient evidence of defendant's identity to present a question for the jury. People v. Abernathy (1931), 253 Mich 583.
Third: The juvenile court and the trial court violated defendant's rights to procedural due process by using, at sentencing, juvenile records of defendant.
Defendant relies on § 23 of that portion[4] of the probate code which pertains to juveniles:
"A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter."
Prior to imposition of sentence in a felony case, a probation officer must inquire into the defendant's antecedents, character and circumstances and furnish a report thereon to the sentencing judge. CL 1948, § 771.14 (Stat Ann 1954 Rev § 28.1144) requires:
"Before sentencing any person charged with a felony, and, if directed by the court, in any other case where any person is charged with a misdemeanor within the jurisdiction of the court, the probation officer shall inquire into the antecedents, character and circumstances of such person or persons, and shall report thereon in writing to such court or magistrate. * * *"
Webster defines "antecedents" and "character" thus:

*256 antecedents: the significant events, conditions, principles, traits, or activities of one's earlier life.
character: the complex of accustomed mental and moral characteristics and habitual ethical traits marking a person.
To be true and complete, the required inquiry must include whatever reasonably obtainable juvenile record an accused may have. Only by examination of a complete report, containing any such record, can the court properly perform its duties: to determine whether "defendant is not likely again to engage in an offensive or criminal course of conduct" and whether "the public good does not require that the defendant shall suffer the penalty imposed by law";[5] and, if probation be granted, "to fix and determine the period and conditions" thereof.[6]
Nor does § 23 preclude examination of juvenile records for the purpose of sentencing. The express terms of the statutory prohibition bar only the use of prior juvenile dispositions as "evidence". Read in the light of its generally accepted meaning, "evidence" connotes testimony and matters actually presented at trial. The post-conviction examination of juvenile records in order to impose a fair and just sentence is not a use of such records as "evidence". Cf. Commonwealth v. Myers (1958), 393 Pa 224 (144 A2d 367); State v. Jones (1966), 91 NJ Super 67 (219 A2d 193).
Affirmed.
All concurred.
NOTES
[*]  Circuit Judge, sitting on the Court of Appeals by assignment.
[1]  CLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280).
[2]  CL 1948, § 712A.4 (Stat Ann 1962 Rev § 27.3178[598.4]).
[3]  Our review has included an examination of the transcript of the waiver proceedings. Sua sponte, we called for production of the transcript under the authority granted by CLS 1961, § 712A.28 (Stat Ann 1962 Rev § 27.3178[598.28]). In the future, whenever the sufficiency of the waiver proceedings is questioned, we recommend that, in addition to the formal waiver order, the record before the reviewing court also contain a transcript of the waiver hearing. Cf. Templeton v. State (1968), 202 Kan 89 (447 P2d 158). Otherwise, meaningful review is impossible.
[4]  CL 1948, § 712A.23 (Stat Ann 1962 Rev § 27.3178 [598.23]).
[5]  CLS 1961, § 771.1 (Stat Ann 1969 Cum Supp § 28.1131).
[6]  CL 1948, § 771.2 (Stat Ann 1954 Rev § 28.1132).