Bynote v. National Super Markets, Inc.
| Decision Date | 24 January 1995 |
| Docket Number | No. 76902,76902 |
| Citation | 891 S.W.2d 117 |
| Parties | Cynthia BYNOTE, Respondent, v. NATIONAL SUPER MARKETS, INC., Appellant. |
| Court | Missouri Supreme Court |
Ann E. Hamilton, St. Louis, for appellant.
Michael Gross, David M. Nissenholtz, St. Louis, for respondent.
We granted transfer in this case to consider whether the contents of a conversation between employees of a defendant business, overheard by an injured invitee immediately after a slip and fall, are admissible to establish defendant's knowledge of a dangerous condition. The trial court admitted the evidence of the employees' statements and the jury returned a verdict for the plaintiff.
The Court of Appeals, Eastern District, concluded that the plaintiff's testimony was inadmissible hearsay, held that the plaintiff failed to make a submissible case, and reversed the judgment of the trial court. We have jurisdiction. Mo. Const. art. V, § 10. For the reasons that follow, the judgment of the trial court is affirmed.
On February 12, 1989, Cynthia Bynote, the plaintiff, entered one of defendant's ["National"] National Super Market stores. She picked up a few grocery items. Near the checkout counter, she slipped and fell on a puddle of liquid on the floor, suffering injuries. Bynote testified that she sat on the floor for two or three minutes after her fall trying to gather herself. A uniformed grocery bagger, whom she recognized from previous shopping visits, asked if she was okay. Bynote replied, "Oh, well, I guess." Then a female checker came around from the cash register and, according to Bynote, said to the bagger, "I told you to get that water up." The bagger replied, "I did." "Well," the checker said, "I can see the suds from here." Bynote testified that the bagger walked away and the checker returned to her cash register. Neither assisted Bynote, who remained on the floor. Bynote testified that when she finally returned to her feet, she could see water on the floor where she had fallen, and noticed that the palms of her hands and the seat of her pants were wet. She paid for her groceries and left without reporting the slip and fall to the assistant manager on duty.
Bynote reported the fall to the defendant's store manager a day or two after the incident, when her pain worsened. The manager contacted the assistant manager who was on duty the night of the fall. The assistant manager disavowed any knowledge of Bynote's accident.
The manager testified that any employee could direct a bagger to clean up liquid on the floor of the store and that a bagger was required to attend to such spills. Neither the bagger nor the checker were deposed or testified at trial. Prior to trial, National filed a motion in limine, seeking to exclude Bynote's testimony as to the statements of the bagger and checker. The trial court overruled the motion. At trial, over National's objection, the court admitted Bynote's testimony concerning the employees' statements.
National assigns error to the trial court's failure to sustain its motion for a directed verdict. That motion asserted that Bynote failed to make a submissible case because (1) Bynote's testimony concerning statements of National's employees was not admissible, and (2) without that testimony, Bynote could not show that "defendant knew or by using ordinary care should have known of the condition." Luthy v. Denny's, Inc., 782 S.W.2d 661, 663 (Mo.App.1989); accord MAI 22.03 (1989).
Bynote offered the statements of the bagger and checker as evidence of National's actual knowledge of the condition. Actual knowledge of a dangerous condition is shown if "an agent or employee [of the defendant] knew of the dangerous condition." Taylor v. F.W. Woolworth Co., 592 S.W.2d 210, 211 (Mo.App.1979); accord Hunt v. National Super Markets, Inc., 809 S.W.2d 157, 159 (Mo.App.1991); Vinson v. National Super Markets, Inc., 621 S.W.2d 373, 375 (Mo.App.1981); McIntyre v. M. & K. Department Store, Inc., 435 S.W.2d 737, 740-41 (Mo.App.1968). There was no other evidence of actual or constructive knowledge of a dangerous condition by National. Thus, this case is submissible only if Bynote's testimony concerning statements of the checker and bagger is admissible to show that National, through its agents, knew of the dangerous condition prior to the fall.
National urges that the testimony is inadmissible hearsay. Bynote argues that the testimony is admissible as state of mind testimony or under the excited utterance or admission of party-opponent exceptions to the hearsay rule. From a review of the record, it appears that the trial court admitted the statements under the excited-utterance exception to the hearsay rule.
When a witness offers the out-of-court statements of another to prove the truth of the matter asserted in the statement, the testimony is hearsay. Generally, courts exclude hearsay because the out-of-court statement is not subject to cross-examination, is not offered under oath, and is not subject to the fact finder's ability to judge demeanor at the time the statement is made. However, exceptions to the general prohibition against hearsay may apply when circumstances conspire to assure the trustworthiness of the declarant's statement despite the absence of cross-examination, the oath, and the fact finder's ability to observe the declarant's demeanor.
The parties make free use of the term "res gestae" in their briefs to describe the exceptions to the hearsay rule. The phrase is virtually meaningless in determining what a trial court means when it permits testimony on the basis of the "res gestae" exception to the hearsay rule. In State v. Williams, 673 S.W.2d 32, 34 n. 1 (Mo. banc 1984), this Court quoted with approval from 6 Wigmore, Evidence § 1767 (Chadbourne rev. 1976):
[T]he phrase res gestae has long been not only entirely useless, but even positively harmful. It is useless, because every rule of evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both.
"Res gestae" is not synonymous with its specific subcategories--present sense impression, excited utterance, then existing mental, emotional, or physical condition and various forms of nonhearsay. The use of the term "res gestae" in arguing for the admission of out-of-court, third-party statements failed to clarify the specific current category of the hearsay rule exception sufficiently for a trial court to understand the evidentiary standard the party invokes. Therefore, we will no longer recognize the phrase "res gestae" as carrying sufficient meaning to support either the admission of or an objection to proffered testimony.
Our review proceeds, then, to determine whether the trial court's admission of defendant's employees' statements comports with specifically identified exceptions to the hearsay rule or is admissible for some other reason. The parties do identify, either in opposition or support, several possible bases for admission of the statements of the bagger and checker: (1) state of mind; (2) excited utterance; and (3) admission by a party-opponent.
In this case we are concerned with "state of mind" testimony introduced to show that the defendant, through its agents, had notice of the existence of a liquid on the floor. Generally, testimony concerning notice falls within two categories: statements of the declarant and statements of one who hears the declarant. Both are present in this case.
Where the statement of which the witness testifies is that of the declarant--here testimony by Bynote that the checker said that she had told the bagger to clean up the water--the testimony is admissible only if it meets time and place criteria. Because the testimony is offered to show notice, the statement that is the subject of the testimony must be made prior to the slip and fall.
No one can know another's mental processes; a relevant statement of condition prior to the incident, however, is an outward manifestation of what the declarant knew prior to the fall. Since the issue for which the evidence is offered is the defendant's awareness of the dangerous condition prior to injury, courts permit the admission of the statement out of necessity. That the statement also contains elements of hearsay is outweighed by the ability of the statement to reveal the declarant's state of mind.
In this case, the checker's statements showing notice, as well as those of the bagger, were made after the fact. They fail the time and place requirements for state of mind testimony and were not admissible under the state of mind exception to the hearsay rule.
Where the issue is what the defendant's agents heard--the second category--state of mind testimony is not offered to show the truth of the statements made. Instead, it is offered to show the fact that the statements, whether true or false, were made to defendant and, as a result, defendant had notice of a potentially dangerous condition prior to any injury. State of mind testimony in this category is not admitted as an exception to the hearsay rule. It is admitted because it is not hearsay.
In Vinyard v. Vinyard Funeral Home, Inc., 435 S.W.2d 392, 396 (Mo.App.1968), the court found that complaints received by the defendant about the parking lot pavement being slippery when wet on a date prior to the plaintiff's injury were admissible to show knowledge by the defendant of the propensity of the parking lot to become slippery when wet. The rationale supporting admission of the evidence was that the complaints showed defendant's knowledge of the slippery condition at some time prior to the incident sub judice. Id. The statements did not show the existence of the dangerous condition at the time of plaintiff's fall and were not...
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...under oath, and is not subject to the fact finder's ability to judge demeanor at the time the statement is made." Bynote v. Nat'l Super Markets, Inc. , 891 S.W.2d 117, 120 (Mo. banc 1995). Exceptions to the general prohibition against hearsay may apply when circumstances assure the trustwor......
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