Beverly J. CHANEY and Francis E. Chaney, her husband, Appellants, v. WINN DIXIE STORES, INC., a Florida corporation, Appellee.
No. 91-04103.
District Court of Appeal of Florida, Second District.
September 16, 1992.
605 So. 2d 527
PARKER, Judge.
James L. Yacavone, III, Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Clearwater, for appellee.
PARKER, Judge.
Beverly J. Chaney and Francis E. Chaney seek review of a final judgment entered for Winn Dixie Stores, Inc., in this slip and fall case. We reverse for the failure of the trial court to admit into evidence certain statements which Mrs. Chaney alleged that an employee of Winn Dixie made.
Mrs. Chaney sued Winn Dixie for personal injuries that she sustained in a fall at its store, and her husband sued for his resulting loss of consortium. The facts are disputed; however, it is uncontested that Mrs. Chaney was shopping at Winn Dixie with her twenty-six-year-old, severely mentally retarded son and that she slipped on a substance on the floor and fell.
Plaintiffs’ theory of the case was that Mrs. Chaney slipped on vomit and that an employee of the store knew that there was vomit on the floor for at least a few minutes before the fall. Both plaintiffs testified at trial that the substance on the floor was vomit. The trial judge, however, precluded the plaintiffs from testifying that an employee told them that she had called a
Defendant‘s theory of the case, of which the plaintiffs were aware from discovery, was that the substance on the floor was diarrhea from Mrs. Chaney‘s son. Wendy Broedel, a part time office clerk at Winn Dixie at the time of the accident, testified at trial that she had been returning products to the shelves and that she had just left the aisle where Mrs. Chaney fell a minute before the fall and had not observed or smelled anything on the floor. She heard Mrs. Chaney scream and immediately returned to the aisle. She saw Mrs. Chaney and a substance on the floor. She observed spots of the substance leading from Mrs. Chaney to her son. She saw the substance on the back of the son‘s pants leg going down to his shoe. She described it as a “wet stain” on his pants. Broedel instructed a cashier who was at a register, whom Broedel could not identify by name, to get the manager. Broedel testified that no one else was in the aisle when she arrived at the scene and that a cashier did not come to the scene.
The Chaneys seek review of the trial court‘s rulings which prohibited each of them from testifying about statements that they allege a Winn Dixie employee made to them.
Mrs. Chaney proffered testimony that a cashier came up to her after her son yelled for help and said, “I just called that boy a few minutes ago to come here and clean this up.” She testified that the declarant “had a tag on her like the others“; however, she did not pay attention to the name. Mrs. Chaney further testified that the declarant “was in her checkout lane” when Mrs. Chaney‘s son yelled for help.
It is not necessary for a party to know the name of the person who allegedly has made a damaging statement against the interests of his employer or principal in order for the statement to be admitted as an admission. Davis v. Mobil Oil Exploration & Producing Southeast, Inc., 864 F.2d 1171 (5th Cir.1989). Instead, a party may offer circumstantial evidence that the declarant is an employee or agent. In the case of Thee v. Manor Pines Convalescent Center, Inc., 235 So. 2d 64 (Fla. 4th DCA 1970), the plaintiff proffered testimony that an employee of a nursing home, whom she could not name, made a statement. The Thee plaintiff identified two women by their uniforms as being a head nurse and a nurse‘s aide at the nursing home. The aide did two acts characteristic of an aide — helping the plaintiff to a wheelchair and mopping up a spill on the floor. Further, the aide responded to a superior‘s inquiry as one would expect an aide to do. The court held that this testimony was sufficient to establish a prima facie case that the declarant was an employee of the nursing home and that the burden of going forward with the evidence shifted to the defendant.
Likewise, the Davis plaintiff offered testimony regarding unsafe instructions he and his coworkers had received from an unidentified Mobil company man. He testified that the declarant was wearing a Mobil hat, and two coworkers testified unequivocally that the person who issued the order at a safety meeting was a Mobil employee. The court held that this was sufficient evidence to permit the testimony as an admission against Mobil.
We conclude that Mrs. Chaney‘s proffered testimony taken as true was sufficient to establish a prima facie case that the declarant was a Winn Dixie employee.
Mr. Chaney also proffered testimony. He testified that he was sitting in his car in Winn Dixie‘s parking lot reading the newspaper when a lady came to him and informed him that his wife had fallen. He then testified that the lady said, “[I]t was just four or five minutes before your wife fell in that aisle I went back and told the boy to clean that up.” Mr. Chaney, like his wife, did not know the declarant‘s name. The only circumstantial evidence to support that the declarant was a Winn Dixie employee was Mr. Chaney‘s statement that she wore a name tag which looked like a Winn Dixie tag. Unlike his wife, Mr. Chaney could not testify as to the declarant‘s work location at the store. Instead, he testified that she “[t]ook off toward the cash registers.” We, therefore, conclude that the plaintiffs did not proffer sufficient evidence to establish that the person who made the statement to Mr. Chaney was an employee of Winn Dixie. We cannot consider Mrs. Chaney‘s testimony as a supplement to Mr. Chaney‘s testimony because plaintiffs made no showing that they were testifying about the same declarant. In fact, their testimony would be inconsistent with that assumption. Mrs. Chaney testified that the declarant stayed with her until paramedics came. Mr. Chaney encountered the woman in the parking lot, and then the woman did not return to Mrs. Chaney afterwards. The paramedics arrived after Mr. Chaney was in the store.
Accordingly, we reverse the final judgment and remand the case for a new trial.
SEALS, JAMES H., Associate Judge, concurs.
CAMPBELL, A.C.J., dissents.
Beverly J. CHANEY and Francis E. Chaney, her husband, Appellants, v. WINN DIXIE STORES, INC., a Florida corporation, Appellee.
No. 91-04103.
District Court of Appeal of Florida, Second District.
September 16, 1992.
CAMPBELL, Acting Chief Judge, dissenting.
I must respectfully dissent.
Mrs. Chaney‘s proffered testimony concerning the alleged statements of the unidentified alleged employee of appellee Winn Dixie is, in my opinion, the only evidence that could support her claim of negligent knowledge and failure to act on the part of Winn Dixie that would preclude a directed verdict in favor of Winn Dixie. The proffered statement of the alleged “cashier” was clearly excludable as hearsay unless admissible under the exception to hearsay rule established in
As to point II, Mrs. Keyes asserts that the trial court erred by not allowing Nurse Barrett to testify concerning statements made to her by an unidentified nurse which indicated that the posey was still on Mrs. Keyes at the time she was found on the floor. While statements made by an employee of a party in the course of their employment are normally admissible pursuant to
section 90.803(18)(d), Florida Statutes (1989) , the general rule does not have to be applied in cases where there is an insufficient basis to establish whether the statement is made about matters within the personal knowledge of the declarant, or where the statement does not meet other tests of admissibility. In the instant case, there is no evidence that the nurse speaking to Nurse Barrett actually witnessed the matters about which she was speaking. Such statements may, therefore, involve hearsay within hearsay. Absent proof that the underlying statement met a hearsay exception or was based on personal knowledge, it is inadmissible undersection 90.805, Florida Statutes (1989) .7
I would affirm the judgment below.