Introduce the Right Circumstantial Evidence for Purposes of “Admission by Party Opponent” Hearsay Exception
One of the exceptions to hearsay is known as an admission by a party opponent. In Florida, this hearsay exception is included in Florida Statute s. 90.803(18):
(18) ADMISSIONS.—A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.
This is an important and valuable hearsay exception. In a recent case, the issue was this hearsay exception by an employee, i.e., could the employee’s out of court statement to prove the truth of the matter asserted be introduced by a plaintiff suing the employee’s employer (the party opponent restaurant).
In Sentz v. Bonefish Grill, 48 Fla.L.Weekly D2197a (Fla. 4th DCA 2023), a plaintiff sued a restaurant in a premises liability action. Summary judgment was entered in favor of the restaurant. The plaintiff appealed claiming the trial court erred by disregarding a purported statement by an anonymous employee. The plaintiff argued the employee’s purported statement should have been considered as an admission by a party opponent against the restaurant (her employer).
A party seeking to introduce an employee’s statement under this hearsay exception “must make a three-part preliminary showing for an employee’s admission to be admitted against the employer: (1) the declarant is the employee of the employer; (2) the matter is within the scope of the employment; and (3) the employee made the statement while employed by that employer.” Sentz, supra(citation omitted).
The party does not need to name the employee who made the purported statement but needs to offer circumstantial evidence that the person that made the statement is an employee or agent. Sentz, supra (quotation and citation omitted).
In this case:
[The plaintiff] did not know the name of the server [employee] who allegedly made the statement. She described the server as a white female in her early 20s, with possibly dark or brownish hair in a ponytail, of similar height to herself, with medium build and no glasses. [The plaintiff] did not attest to any characteristics such as a uniform or name tag, or what items, if any, the server was carrying to support her assertion that the anonymous declarant was in fact a server of [the restaurant].
Sentz, supra.
The appellate court agreed that the trial court was right to disregard this purported statement because the circumstantial evidence offered by the plaintiff was NOT sufficient to demonstrate that the person that made the statement was an employee or agent of the restaurant:
The quantum of circumstantial evidence of the server’s identity as a [restaurant] employee fell below [the requirement circumstantial evidence]. In fact, the level of circumstantial evidence about the anonymous server fell below even that which the Second District found lacking in Chaney, where the husband there had testified that the anonymous declarant wore a name tag resembling a Winn Dixie tag.
Sentz, supra.
Therefore, if this hearsay exception is an important part of your case, and it may be, make sure you offer the right evidence, even if circumstantial, to demonstrate that the person that made the statement is an actual employee or agent of the party opponent (employer) being sued.
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
