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Hearsay and summary judgment

Case No. 1:  A plaintiff sues, alleging that while visiting her sister in the hospital, she slipped and fell on spilled water in a kitchenette near the maternity room.  The hospital moves for summary judgment, claiming that it had no notice of the water on the floor.  The plaintiff had testified in her deposition that two people, one behind the desk on the delivery floor and another behind the front desk, had told her "that happens all the time," and that a couple days later a nurse had told her, "well, that happens all the time up there, things get wet and people fall... people run in there to get water, maybe a nurse will run in there to grab ice out of a machine or do something."  The court holds that's hearsay, and grants summary judgment.

The 8th District affirmed that decision last week in Shreves v. Meridia Health System.

Case No. 2:  A plaintiff sues, alleging that she slipped and fell on a "liquid" at a restaurant.  The restaurant files a motion for summary judgment, claiming that it had no notice of the liquid being on the floor.  The plaintiff files an affidavit from her sister in response, which states that "she believes that an employee mentioned a substance was spilled near the bar area and that the substance was mopped up but then forgotten about" and that "she believes that an employee mentioned that the floor had been waxed recently, either the night before or the morning of the baby shower."  The court holds that's hearsay, and grants summary judgment. 

The 10th District reversed that decision last week in Cordle v. Bravo Development Co.

What's the difference?  Both appellate courts recognized that the statement of an employee usually isn't hearsay, because it's deemed an admission of a party opponent under Rule 801(D)(2)(d).  That was good enough for the 10th District, which held that the statements that something had spilled earlier in the day and that the floor was freshly waxed were statements of fact, and were "well within the scope of the employee's knowledge and employment."

It wasn't good enough for the 8th District, though, which held that the plaintiff didn't meet her "the burden of establishing that the statement 'was made by an agent or employee of the party-opponent, during the existence of the relationship, concerning a matter within the scope of employment or agency.'" 

I think the 10th District got this one right.  The 8th District explained its decision to exclude the statements as follows:

Mrs. Shreves did not identify the individuals, by name or position, who allegedly made the statements, nor could she establish the statements concerned a matter within the scope of that person's authority. Other than Mrs. Shreves' self-serving statement that the individuals were employees of defendant, plaintiffs have failed to establish the scope of the agency relationship. Further, plaintiffs are unable to sustain their burden of demonstrating that these individuals had some authority regarding the subject matter.

There's no requirement that the person who made the statement be identified, and it's fairly easy to infer that someone sitting behind a desk at a hospital is an employee of the defendant.  It's difficult to understand why there's any question as to the whether the individuals "had some authority regarding the subject matter."  The only case the court refers to on this was a decision involving a lawsuit against a company that had submitted fraudulent paperwork, and claimed in response that an unnamed employee of the plaintiff had told them to go ahead and do it.  It's one thing to claim that authorizing the commission of fraud wasn't within the scope of an employee's authority, but it's hard to see how the statement of a nurse that water was often spilled on the floor was outside that authority.  If the employee had been clearly identified, would there have been any question that the statement could be admitted? 

And that, I think, is the problem:  the court simply doubted that the statements had been made, as indicated by its reference to the plaintiff's testimony being "self-serving."  But the question of whether the employees really said that -- whether the plaintiff was telling the truth about that -- is not one for the courts.  As the 10th District put it,

Resolution of a motion for summary judgment does not include trying the credibility of witnesses. If an issue is raised on summary judgment, which manifestly turns on the credibility of the witness because his testimony must be believed in order to resolve the issue, and the surrounding circumstances place the credibility of the witness in question -- for example, where the potential for bias and interest is evident -- then, the matter should be resolved at trial, where the trier of facts has an opportunity to observe the demeanor of the witness.

This gets back to something I alluded to a few months back:  the increasing willingness of the courts to grant summary judgment in cases where the plaintiff has a marginal case, but one which would have survived summary judgment ten or fifteen years ago.  You see that a lot in slip and fall cases -- the "open and obvious" doctrine has made that almost routine -- and in intentional tort cases.

It may well be that Ms. Shreve was making up what the supposed employees said.  But that's up to a jury, not a judge or an appellate panel, to determine.

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