Pappas v. Middle Earth Condominium Ass'n

• Decision Date: 08 May 1992
• Docket Number: D,No. 930,930
• Citation: 963 F.2d 534
• Parties: , 35 Fed. R. Evid. Serv. 828 Kevin PAPPAS, Plaintiff-Appellant, v. MIDDLE EARTH CONDOMINIUM ASSOCIATION; Castle Rock Management Company, Defendants-Appellees. ocket 91-7942.
• Court: U.S. Court of Appeals — Second Circuit

Page 534

963 F.2d 534

60 USLW 2737, 35 Fed. R. Evid. Serv. 828

Kevin PAPPAS, Plaintiff-Appellant, v. MIDDLE EARTH CONDOMINIUM ASSOCIATION; Castle Rock

Management Company, Defendants-Appellees.

No. 930, Docket 91-7942.

United States Court of Appeals, Second Circuit.

Argued March 3, 1992.

Decided May 8, 1992.

Bradley D. Myerson, Manchester Center, Vermont (Myerson Law Offices, of counsel), for plaintiff-appellant.

John Paul Faignant, Rutland, Vermont (Miller & Faignant, P.C., of counsel), for defendants-appellees.

Before: CARDAMONE and ALTIMARI, Circuit Judges, and TELESCA, District Judge. ^*

CARDAMONE, Circuit Judge:

This appeal arises from a suit brought by Kevin Pappas for serious injuries he suffered when he slipped and fell on an icy walkway leading to his condominium near the Sugarbush Ski Area in Warren, Vermont. Plaintiff, a resident of New Jersey, brought a diversity action charging negligence against Middle Earth Condominium Associates, owner of the property, and Castlerock Management Company, a Vermont corporation, whose contract to manage and maintain the property included responsibility for snow and ice removal. The case was tried before a jury on July 16-18, 1991 in the United States District Court for the District of Vermont (Billings, C.J.).

On the appeal in this diversity case a straight forward evidentiary issue is raised and, more troubling, an alleged issue of regional bias engendered by defense counsel in his summation. Exact and equal justice to all regardless of politics, religion, race or region is the lofty goal constantly pursued in federal court; when that goal is lost sight of however briefly every litigant may not then be said to have been rendered what is due. Because we think the evidentiary

ruling was incorrect and because prejudice may have entered into the jury's deliberations on account of defense counsel's regional comments, we reverse and order a new trial.

FACTS

Immediately after arriving in Vermont after 10 P.M. on the evening of February 25, 1987, and while carrying his ski boots from the parking lot, the then 33-year-old Kevin Pappas slipped and fell on a dome of ice on a walkway that ran alongside a building leading into a condominium that he and a group of friends had rented for a five-day ski vacation. He suffered a severely broken ankle that required three operations, and which later was surgically fused. Plaintiff's suit sought damages for pain and suffering and future lost earnings resulting from his loss of employment as a mate on a tugboat for Texaco Marine Services.

The fall occurred after Pappas had proceeded downstairs from the parking lot, walked alongside the condominium building and reached its corner. Just after turning the corner, he stepped on the dome of ice and fell. The ice build-up measured three feet in circumference and was four to six inches thick at its peak. One of plaintiff's friends, who arrived at the condominium before Pappas, testified that fresh fallen snow obscured the walkway. Another witness, Sherry Cherris, who, with her husband, was part of the vacationing group, testified that she had to be carried over this icy patch to reach condominium number 23 where the group was staying.

The maintenance personnel manager for Castle Rock admitted that his employer was responsible for maintaining and managing Middle Earth's 67 condominium units. He explained the procedures for removing ice and snow from the walkways, and stated that deficiencies in the design of the condominiums may have been responsible for an increased incidence of ice on the walkways, a condition of which he was aware before appellant's fall occurred. He stated that complaints about icy walkway conditions on the night of the accident were responded to by one of two night shift employees on duty at the time.

After Pappas fell, Sherry Cherris telephoned the management company, using a number she found pinned on the refrigerator, complaining of the walkway's icy condition. A man with a shovel and a bucket eventually appeared. At trial, plaintiff sought to introduce through Ms. Cherris the statements this employee made regarding the performance of Castlerock employees in maintaining the walkway. The trial court refused to admit it, ruling that an insufficient foundation had been laid regarding the employee's identity and the scope of his responsibilities.

Plaintiff then presented four witnesses who testified with respect to damages. The defense called no witnesses and presented no evidence. Plaintiff's injury and damages (not their amount) were conceded, and the only issues for the jury were defendants' negligence, plaintiff's contributory negligence and, were the jury to reach it, the amount of plaintiff's damages. Defense counsel's brief summation included the following:

DEFENDANTS' COUNSEL: ... There's no question there's a legitimate injury here. And we didn't even ask Dr. Abrams any question, and that's why. We do not dispute that, yes, there was an injury here. But isn't what they're really asking is that they can come up from New Jersey--

PLAINTIFF'S COUNSEL: Objection

THE COURT: What's the basis of your objection?

PLAINTIFF'S COUNSEL: I think that's really getting inflammatory. It's appealing to regionalism rather than the facts of the case.

THE COURT: Objection overruled. You may proceed.

DEFENDANTS' COUNSEL:--if they can come up here from New Jersey to Vermont to enjoy what we experience every year, for those of us who are here originally for most of our lives, for most of us who come here for our own reasons, for the rest of the time that we're here, and without a care in the world for their own Later in the same summation, counsel for defendant continued, "Would we go to New Jersey and walk on a tugboat without looking where we were going?" In its charge the trial judge simply cautioned the jury that arguments and questions of counsel were not evidence. After three hours of deliberation, the jury returned a verdict in favor of the defendants.

                safety when they encounter what we, ourselves do not take for granted, and they can injure themselves, and they can sit back and say, "Well, yes.   I'm on long-term disability, and I sit around and I watch golf on TV, but I'd like you to retire me.   Retire me now.   Pay me now what I would get or what I claim I would get until I work for age 65," regardless of the fact that there are no employees over the mid-40's in the very job for Texaco, which we learned was a very large company
                

Because the jury specifically found that the defendants were not negligent, it did not reach the issue of plaintiff's contributory negligence. Plaintiff moved for a new trial on the grounds that the testimony of Ms. Cherris had been excluded erroneously and that defense counsel's summation prejudicially engendered a regional bias against him. The district court again rejected the argument for admission of Ms. Cherris' statements on the grounds that there was an inadequate foundation to receive it. With respect to defense counsel's summation, the trial court ruled that rather than calculated to elicit a jury's regional bias, the comments addressed defendants' argument that plaintiff was contributorily negligent in not exercising the degree of care required for conditions typically found in Vermont, but possibly unfamiliar to someone from another state. From this order of the district court, plaintiff appeals.

DISCUSSION

I Vicarious Admission

We turn first to the district court's refusal to admit the testimony concerning the statement of the unidentified Castlerock employee who responded to Ms. Cherris' telephone complaint. In its post-trial ruling denying a new trial, the trial court stated that "[p]laintiff did not adequately show that the employee who allegedly made the statement to the witness was speaking about a matter over which he had been granted authority by Castlerock as is required by [Fed.R.Evid. 801(d)(2)(D) ]. It does not appear to this court under the facts presented that such authority was granted." On the contrary, we think an adequate foundation was shown and that Ms. Cherris' testimony respecting what Castlerock's employee told her should have been admitted.

Rule 801(d)(2)(D) provides that "[a] statement is not hearsay if ... [it] is offered against a party and is ... a statement by the party's agent or servant concerning a matter within the scope of the agency of employment, made during the existence of the relationship." The Advisory Committee Notes observe that because admissions against a party's interest are received into evidence without many of the technical prerequisites of other evidentiary rules--such as, for example, trustworthiness and personal knowledge--admissibility under this rule should be granted freely. Liberal admissibility of this sort of proof is grounded on certain premises. One is that an employee is usually the person best informed about certain acts committed in the course of his employment, and another is that while still employed an employee is unlikely to make damaging statements about his employer, unless those statements are true. See McCormick on Evidence § 267 (2d ed. 1972); 2 Wigmore, Evidence § 280(2) (Chadbourn rev. 1979).

A sufficient foundation to support the introduction of vicarious admissions therefore requires only that a party establish (1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency. See, e.g., United States v. Pilarinos, 864 F.2d 253, 257 (2d Cir.1988); Davis v. Mobil Oil Exploration & Producing Southeast, Inc., 864 F.2d 1171, 1173-74 (5th Cir.1989); Northern Pacific Ry. v. Herman, 478 F.2d 1167, 1171 (9th Cir.1973).

                The authority granted in the agency relationship need not include authority to make damaging statements, but simply the authority to take action about which the statements relate.   See J. Weinstein & M. Berger,

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