Phillips v. Andover Senior Care, LLC
| Decision Date | 05 November 2021 |
| Docket Number | No. 122,312,122,312 |
| Parties | ESTATE OF Edna PHILLIPS, BY AND THROUGH its duly appointed executor Steven PHILLIPS, and Steven Phillips, John Phillips, and Judy Fugit, Heirs at Law of Edna Phillips, Appellants, v. ANDOVER SENIOR CARE, LLC, d/b/a Victoria Falls and d/b/a Victoria Falls Assisted Living, Appellee. |
| Court | Kansas Court of Appeals |
Melinda G. Young, of Melinda Young Law, LLC, of Hutchinson, for appellants.
Matthew A. Spahn, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.
Before Powell, P.J., Bruns, J., and Steve Leben, Court of Appeals Judge Retired, assigned.
Suffering from dementia
, Edna Phillips moved to a nursing home where facility staff could help to keep her safe. But she walked out of the facility, apparently unnoticed, fell on an uneven sidewalk, and broke her hip. She died five days later.
Mrs. Phillips' estate sued the nursing home, owned by Andover Senior Care, LLC, for the failure to keep Mrs. Phillips from heading outside on her own. But a key piece of evidence was excluded at trial. That evidence was her son's testimony that the on-call nurse had told him by phone the day Edna fell that she had gotten away unsupervised because both staffers who could have prevented it left for lunch at the same time. The district court excluded that evidence under the rules precluding hearsay testimony.
But the hearsay rules have lots of exceptions, and one of them applied here: the testimony should have been allowed as an admission of a party opponent made by the nursing home's on-call nurse. Because this evidence was central to the plaintiff's case and not presented to the jury, we set aside the judgment entered for the defendant and remand the case for a new trial.
The parties presented extensive evidence in a seven-day jury trial. We will review only the evidence central to the legal issues raised on appeal.
Mrs. Phillips' estate, the plaintiff in this lawsuit, wanted to present her son's testimony that a nurse had called him from the nursing home the day his mother fell. Her son, Steven, would have testified that when he asked the nurse "how [his mother] got out," he "was informed that out of the three staff on duty, two had [gone] to lunch and left the doors unattended."
The district court correctly held that this was testimony about a hearsay statement. Hearsay is a statement, presented to show the truth of what was said, made by someone other than the witness who is testifying. See K.S.A. 2020 Supp. 60-460. But lots of hearsay statements are admissible because there are many specific provisions allowing them into evidence.
Andover Senior Care emphasized at trial and notes again on appeal that its records didn't show that this statement was made. The district court relied on that as one basis for its initial rejection of the testimony, sustaining the hearsay objection and stating that "if this witness is about to disclose information that is not already contained in the records that have been admitted, then I will sustain the objection."
Before concluding its presentation, Mrs. Phillips' estate renewed the attempt to admit this statement. In support, it argued several specific hearsay exceptions, including one found in K.S.A. 60-460(g). That provision allows hearsay statements to be used "against a party" in the case if the statement was made by a person who was "acting in [a] representative capacity" for the party in making the statement. K.S.A. 2020 Supp. 60-460(g).
Steven testified that the nurse who called him said that "she was the nurse on call at that time." He believed she was Jessica Todd, a registered nurse who worked for Andover Senior Care then, but Steven also admitted that the nurse didn't give her name during that call.
The district court denied admission under K.S.A. 60-460(g) largely because there wasn't clear identification of the nurse who called Steven: Andover Senior Care continues to argue on appeal that unless the nurse who called Steven is identified, the statement can't come into evidence as an admission of a party.
But many courts have held otherwise, and we think their rulings make sense.
What the rule requires is that the statement have been made by someone "in [a] representative capacity" for the party. K.S.A. 2020 Supp. 60-460(g). A similar federal rule allows admission of a statement "made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Fed. R. Evid. 801(d)(2)(D). We agree with Professors Hayden and Mulligan that these provisions are "similar in interpretation." 3 Hayden & Mulligan, Kansas Law and Practice: Lawyer's Guide to Kansas Evidence § 7:9 (5th ed. 2021). A statement made by a party's agent or employee on a matter within the scope of the relationship, the language of the federal rule, is made by a person in a representative capacity, the language of our rule.
In the federal courts, "[i]t is not necessary that the declarant be identified by name, so long as the evidence is otherwise sufficient to show that the declarant bore the necessary relationship to the party and that the subject matter of the statement concerned the declarant's job." Goode & Wellborn, Courtroom Evidence Handbook 259 (2021-2022 student ed.); see Medical Center at Elizabeth Place, LLC v. Atrium Health System , 817 F.3d 934, 944-45 (6th Cir. 2016) ; Lexington Ins. Co. v. Western Pennsylvania Hosp. , 423 F.3d 318, 330 n.7 (3d Cir. 2005) ; Davis v. Mobil Oil Exploration & Producing Southeast, Inc. , 864 F.2d 1171, 1173-74 (5th Cir. 1989). And the plaintiff cites a very similar case to ours from the Florida state courts, Benjamin v. Tandem Healthcare, Inc. , 93 So. 3d 1076 (Fla. App. 2012). In that case, the court held that testimony about what a nursing-home kitchen worker heard other unidentified employees say about someone choking on food was admissible even though the employees weren't identified. 93 So. 3d at 1085-87.
One unpublished Kansas appellate case, State v. Mollenelli , No. 94,550, 2006 WL 3773445, at *3-4 (Kan. App. 2006) (unpublished opinion), does have some language suggesting that the speaker must be identified for the statement to be admitted. But we don't find Mollenelli persuasive on this point. First, the discussion of K.S.A. 60-460(g) in Mollenelli was completely unnecessary to the court's ruling. The court first said that the issue under K.S.A. 60-460(g) was "not properly before us for review." 2006 WL 3773445, at *3. Only after recognizing that the issue wasn't properly before it did our court speak about it. Second, the statement at issue in Mollenelli was that of an unnamed police officer, and statements by police officers are treated differently under this specific hearsay rule. Mollenelli's father claimed that an officer called him to have him pick up his son's car after a DUI arrest and that the officer said Mollenelli had passed his sobriety test. Although it wasn't discussed in Mollenelli , statements by police officers, while admissible under a variety of other hearsay exceptions, wouldn't be similarly admissible under K.S.A. 60-460(g). When a statement is admitted under K.S.A. 60-460(g) or its federal counterpart, it's admitted as the admission of a party opponent. But courts generally hold that since the party opponent in a criminal case is the government, not the police department, statements by police officers aren't admissible as ones by a party opponent. E.g. , Lippay v. Christos , 996 F.2d 1490, 1497 (3d Cir. 1993) ; United States v. Booker , 375 Fed. Appx. 225, 230 (3d Cir. 2010) (unpublished opinion). We do not find Mollenelli persuasive on the points decided in this appeal.
In our case, the plaintiff provided sufficient evidence that the statement was made in a representative...
To continue reading
Request your trial