Plaintiff Must Reasonably Identify an Apologizing Employee in Order for His Declaration to Satisfy the Admission of Party Opponent Hearsay Exception

By: Charles F. Holmgren, Esq.

Upon witnessing a slip-and-fall or other injury-causing accident sustained in their place of employment, an employee will often want to apologize and/or offer an explanation for the accident. Of course, any such explanation, when made out of court, is hearsay, but may likely satisfy the Admission of a Party Opponent exception to the hearsay rule under Pa. R.E. 803(25). However, as emphasized in the Superior Court case of Harris v. Toys R’ Us-Penn, Inc., 2005 Pa. Super 201, 880 A.2d 1270 (2005), the proponent of the employee’s apology must reasonably identify the declarant as an employee in order for the Admission of a Party Opponent exception to apply.

The Court in Harris held that the failure of the plaintiff to provide reasonably identifying information about an individual they believed to be an employee who apologized for his mistake was not sufficient to establish the individual as an employee in order for the Admission of a Party Opponent exception to the hearsay rule to apply.

The plaintiff in Harris alleged she sustained significant injuries to her head, neck and back when a 10-pound toy truck fell from a shelf approximately 18 inches above the plaintiff’s head onto her, knocking her to the floor. The plaintiff stated that the alleged declarant approached her shortly thereafter and, in the presence of her daughter, apologized and stated that he had just placed the toy truck on the shelf after showing it to another customer and that he had not placed it back on the shelf correctly. In the course of her deposition, the plaintiff could only recall the purported employee’s height as being “maybe five-seven,” and as being “on the thin side.” Her daughter, although able to identify the individual as a male wearing a shirt that said Toys R’ Us, did not provide any more information as to the declarant’s identity.

At trial, Toys R’ Us filed a motion in limine to prevent the admission of the apologizing statement into evidence as hearsay. The trial court granted the motion and refused to enter the statement into evidence. Toys R’ Us obtained a jury verdict. After a post-trial motion, the plaintiff appealed to the Superior Court that the trial court abused its discretion in refusing to admit the statement of the unidentified employee.

The Superior Court disagreed with the plaintiff. In looking at Pa. R.E. 803(25)(D), the Court required the plaintiff, as the proponent of the statement, to show that the unidentified employee, as the delcarant of the statement, was an employee of Toys R’ Us, that he made the statement while employed by them and that the statement concerned a matter within the scope of his employment. Beyond an approximate height and a characterization of him as thin, the Court found that the plaintiff provided no information about the declarant. Due to the “incomplete and confusing” testimony as to the employee’s identification, the Court could not find enough evidence to establish that the trial court had abused its discretion in refusing to admit the hearsay statement as evidence.

As shown in Harris, though the good-hearted and well-intended apologies of an employee as a result of a business invitee’s injury can hamper the defense’s case, an inquiry into the plaintiff’s recollection of the apologizer’s identity at a deposition can reveal a lack of knowledge as to that identity that may, in the end, benefit the defense’s position.