Passovoy v. Nordstrom, Inc.
| Decision Date | 10 August 1988 |
| Docket Number | No. 19829-7-I,19829-7-I |
| Citation | 52 Wn.App. 166,758 P.2d 524 |
| Parties | Alexander PASSOVOY, and William Pack, Appellants, v. NORDSTROM, INC., and John and Jane Doe, husband and wife, Respondents. |
| Court | Washington Court of Appeals |
Richard J. Hilfer, Bangs, Castle, Schnautz & Hilfer, P.S., Seattle, for appellants Alexander Passovoy and William Pack.
David C. Lycette, D. Michael Reilly, Lane, Powell, Moss & Miller, Seattle, for respondents Nordstrom, Inc.
Alexander Passovoy and William Pack (hereinafter Passovoy), brought a negligence suit against Nordstrom, Inc. based on injuries they received while shopping in a Nordstrom store. On appeal, Passovoy contends that the trial court erred when it granted summary judgment for Nordstrom. We reverse.
On September 20, 1985, store detective David Siler was on duty in the Nordstrom store when he became suspicious of two men. As Siler watched, the two men surreptitiously placed clothing into bags. Siler notified other store detectives, and they decided to confront the men in the store. In his deposition, Siler stated:
[W]e felt it would be in our best interests for our own personal safety to stop them prior to them exiting the store. We do that on occasion if we feel like someone might run, or if it is a dangerous situation we will stop them prior to them leaving the store.
The suspects took an elevator up to the main floor; Siler rushed up the stairs and met Nordstrom employees David Horowitz and Charles Dudley at the elevator door. There, the detectives took the suspects into custody. According to Horowitz's deposition [a]t that point we formed sort of a triangle type of a situation around the suspects so that we would shield them from the door. We were trying to cut off any chance of them being able to run.
From the elevator, the detectives escorted the suspects up a flight of stairs, through the men's department and, then, to the security office.
Horowitz thought that both suspects were nervous. Neither suspect talked. At the door to the security office, one of the suspects attempted an escape, which, after a struggle, was foiled by Horowitz. When Dudley assisted Horowitz, the other suspect dropped his bag and fled in the direction from which the group had come. Siler pursued him.
According to Siler,
it was crowded, fairly crowded in that part of the store, especially. We had just been in that area where I know that the guy had been running back against, even though I didn't see him, but I knew there may have been some other customers around there.
Meanwhile, Passovoy and Pack, who had been shopping in the store, began walking down the stairs. Siler saw the fleeing suspect run down the stairs and shove Passovoy and Pack aside. Although Siler does not recall whether he yelled a warning during his pursuit of the suspect, Passovoy stated in his affidavit that he received no warning. Passovoy fell to the bottom of the stairs and Pack was left slumped over the stair railing. The suspect then ran out of the store through a nearby door. Siler chased the suspect outside, yelling "stop that man". Detectives from a nearby department store caught the suspect and turned him over to Siler.
After the incident, Pack returned to his home in England and Passovoy to his home in Oregon. In his affidavit, Passovoy claimed that he telephoned Nordstrom because Pack was having difficulty getting his medical bills paid. Passovoy averred that in response, he received a telephone call from a Nordstrom employee who said that she had been given responsibility for handling the case. According to Passovoy, she further stated that the detectives should not have been chasing a shoplifter through the store because that was dangerous, that the detectives are instructed always to consider the safety of customers, and that, as a result of the incident, the store detectives had been retrained.
Nordstrom filed a motion to strike Passovoy's affidavit on the ground that these statements were hearsay. The trial court granted Nordstrom's motion, striking only the "alleged statements by Nordstrom's employees" from Passovoy's affidavit. The court then granted summary judgment for Nordstrom and dismissed the case.
We first address Passovoy's argument that the trial court improperly struck the Nordstrom employee's statements from his affidavit. CR 56(e) requires that affidavits submitted in a summary judgment motion set forth facts as would be admissible in evidence. The statements at issue in Passovoy's affidavit are hearsay; therefore, unless some exception to hearsay is applicable, these statements were properly disregarded by the trial court under CR 56(e).
Passovoy argues that the statements are not hearsay because they are admissions by a party opponent. In pertinent part, ER 801(d)(2) provides that:
A statement is not hearsay if
* * *
(2) Admission by Party-Opponent. The statement is offered against a party and is ... (iii) a statement by a person authorized by him to make a statement concerning the subject, or (iv) a statement by his agent or servant acting within the scope of his authority to make the statement for the party....
When applying ER 801(d)(2), Washington follows the Restatement (Second) of Agency, § 286 (1958), which requires that an agent have speaking authority. Codd v. Stevens Pass, Inc., 45 Wash.App. 393, 404, 725 P.2d 1008 (1986), review den'd, 107 Wash.2d 1020 (1987); Donald B. Murphy Contractors, Inc. v. State, 40 Wash.App. 98, 108-10, 696 P.2d 1270 (1985). In order to fall under the rule, the declarant must be authorized to make the particular statement at issue, or statements concerning the subject matter, on behalf of the party. Lockwood v. A C & S, Inc., 109 Wash.2d 235, 262, 744 P.2d 605 (1987); Barrie v. Hosts of America, Inc., 94 Wash.2d 640, 644, 618 P.2d 96 (1980). When a person does not have specific express authority to make statements on behalf of a party, the overall nature of his authority to act for the party may determine if he is a speaking agent. Lockwood, at 262, 744 P.2d 605.
In Barrie, the issue was whether the deceased had been served in an obviously intoxicated condition by the defendant cocktail lounge. In opposition to the defendant's motion for summary judgment, the plaintiff submitted the affidavit of its attorney. In that affidavit, the attorney claimed that during a telephone call, the defendant's bar manager told the attorney that the deceased had been "smashed". On appeal, the court rejected the argument that the statement was an admission under ER 801(d)(2) because nothing in the record showed that the bar manager was authorized to make the statement. Barrie, at 644, 618 P.2d 96.
Passovoy argues that, unlike Barrie, the affidavit here lays a foundation for the use of the statements as substantive evidence. He then refers us to the allegations in his affidavit that he called Nordstrom and that the employee returned the phone call, demonstrated familiarity with the incident, and claimed responsibility for handling the case. However, Passovoy has confused two separate but related evidentiary rules concerning the identity of the speaker (authentication under ER 901) and the subject of the conversation (admissibility under ER 801(d)(2)).
ER 901 imposes a requirement of authentication or identification as a condition precedent to admissibility. See ER 901(a). Because this determination is a preliminary question, see ER 901, the rules of evidence do not apply. ER 104(a); ER 1101(c)(1). State v. Danielson, 37 Wash.App. 469, 471, 681 P.2d 260 (1984). Consequently, the trial court could have considered the statements in Passovoy's affidavit for the purpose of establishing the identity of the caller. See Danielson, at 471, 681 P.2d 260.
The identity of a party may be established by direct or circumstantial evidence. Danielson, at 472, 681 P.2d 260. The court should admit the evidence if there is sufficient proof to permit a reasonable juror to find in favor of authentication, or identification. See comment to ER 901. 5 A. K. Tegland, Wash.Prac., Evidence § 452 (2d ed. 1980).
Testimony that the person on the other end of the line identified himself as a specific person is, alone, insufficient. State v. Deaver, 6 Wash.App. 216, 491 P.2d 1363 (1971). However, courts routinely find a call to be authenticated when self-identification is combined with virtually any circumstantial evidence. 5 A. Tegland, § 458 at n. 1. 1 The evidence here was sufficient to authenticate the call. In addition to the fact that the caller identified herself as a Nordstrom employee, the call was made in response to Passovoy's call, and the caller demonstrated familiarity with the facts of the incident.
However, a separate inquiry is needed to resolve the issue before us on appeal, namely, whether the statements qualify as admissions by a party opponent under ER 801(d)(2). Unless the fact of the agency may be inferred from other evidence, the mere declarations of an alleged agent, made out of court, may not be used to establish the fact of his agency, Stouffer-Bowman, Inc. v. Webber, 18 Wash.2d 416, 425, 139 P.2d 717 (1943), or the nature and extent of his authority. Woodworth v. Stevens Cy. School District 2, 92 Wash. 456, 461, 159 P. 757 (1916). Independent proof of the existence of the agency and its scope must be shown. 4 J. Weinstein & M. Berger, Evidence, § 801(d)(2)(C) (1987). Here, Passovoy sought to prove the fact and the scope of the agency from the hearsay statements alone; therefore, the trial court properly struck that portion of the affidavit.
We next consider Passovoy's argument that even if the statements were properly stricken, the remaining materials submitted on the motion establish a question of fact. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Barri...
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