Ruszcyk v. Secretary of Public Safety

• Decision Date: 06 January 1988
• Citation: 517 N.E.2d 152,401 Mass. 418
• Parties: William J. RUSZCYK v. SECRETARY OF PUBLIC SAFETY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 152

517 N.E.2d 152

401 Mass. 418

William J. RUSZCYK v. SECRETARY OF PUBLIC SAFETY et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 7, 1987.

Decided Jan. 6, 1988.

Thomas Arthur Hensley, Brockton, for plaintiff.

Mark P. Sutliff, Asst. Atty. Gen., for defendants.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff, Ruszcyk, a former municipal police officer who was injured while participating in training at the Massachusetts State Police Academy, Framingham, appeals from a judgment on a jury verdict in favor of the Commonwealth in his action brought in the Superior Court under G.L. c. 258 (Massachusetts Tort Claims Act). We transferred the appeal to this court on our own motion. The sole issue before us is whether the trial judge erred in excluding evidence that the commandant of the police academy had made a statement concerning the cause of the plaintiff's injuries that tended to establish the Commonwealth's liability. ²

In September, 1978, the plaintiff, a police officer since 1975 for the town of Hanover, entered the Massachusetts State Police Academy, Framingham, for training as a municipal police officer. On his fourth day of training, the plaintiff was standing at attention in platoon formation with other members of his training class. The platoon's drill instructor ordered the platoon to "break ranks," meaning to leave the formation and run as quickly as possible to the inside of a nearby barracks. The door and doorway to the barracks were metal, and were six and one-half feet high and three feet wide. A trooper, Donald Woodson, was holding the door open. The plaintiff testified that he and two other students attempted to get through the doorway at the same time, and that as a result, he was squeezed to the right of the doorway. As he was going through the doorway, he felt a great force striking him in the rear and catching him in the back. He felt excruciating pain in his elbow and the force of the door pinning him against the door frame, and he lost consciousness for a brief period. He testified further that he did not see Trooper Woodson do anything to the door, and that at the time of the injury he did not know what had struck him from behind. The plaintiff alleges that he sustained severe and permanent injuries as a result of this incident, and that subsequently he was forced to retire from the Hanover police department as a result of these injuries.

About a week after this incident, A. Donald DeLuse, chairman of the Hanover board of selectmen, and Sergeant James Cruise, Hanover's acting police chief, went to the police academy to determine the circumstances of the plaintiff's injuries. They were given a tour of the academy by a Captain Dolan, who was commandant of the academy. The plaintiff made an offer of proof that Dolan had told DeLuse and Cruise that the plaintiff's injuries resulted from Trooper Woodson's having kicked in the door on the plaintiff. The trial judge excluded testimony by DeLuse or Cruise as to Dolan's statement as inadmissible hearsay not within our common law rule as to admissions of an agent. Under this rule, an agent's out-of-court statements may be admitted against his principal only where the agent has actual authority to make the statement offered. E.g., Bristol Wholesale Grocery Co. v. Municipal Lighting Plant Comm'n of Taunton, 347 Mass. 668, 671, 200 N.E.2d 260 (1964); Cleary v. First Nat'l Stores, Inc., 291 Mass. 172, 174, 196 N.E. 868 (1935). The judge ruled that Dolan's statement was inadmissible, in that the plaintiff had failed to lay a proper foundation showing that Dolan had actual authority to make statements admitting to liability on behalf of the Commonwealth.

On appeal, the plaintiff contends that the judge erred in his ruling that the plaintiff had not established Dolan's authority to make the statement offered, and so excluded evidence which was properly admissible under our common law rule regarding vicarious admissions by agents. Alternatively, should we disagree, the plaintiff asked the judge and now asks this court to modify this common law rule by adopting the principles expressed in Proposed Mass.R.Evid. 801(d)(2)(D), under which "A statement is not hearsay if ... the statement is offered against a party and is ... a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship." ³ The plaintiff argues that the foundation laid at trial and his offer of proof were sufficient to establish the admissibility of Dolan's statement under this rule.

The defendants contend that there was no error in the judge's exclusion of this evidence under the common law rule, because Dolan was a mere employee of the Commonwealth, not its agent; because the plaintiff failed to lay a proper foundation for the introduction of Dolan's statement in that he failed to show that Dolan was authorized to make statements on behalf of the Commonwealth concerning the cause of the plaintiff's injuries; and because the statement was unreliable in that the plaintiff failed to establish the source of the knowledge on which Dolan based the statement. The defendants do not squarely oppose the plaintiff's request that the court modify the common law rule along the lines of proposed rule 801(d)(2)(D), but contend that the proffered statement is inadmissible under that rule as well. First, the defendants argue that the plaintiff failed to show that Dolan's statement "concern[ed] a matter within the scope of his agency or employment." In addition, the defendants argue that this court should, contrary to the Federal practice, read into rule 801(d)(2)(D), a requirement that, to be admissible, vicarious admissions must be based on personal knowledge, and that there is no indication in the record that Dolan made the statement on firsthand knowledge, nor is there any indication of the source of the statement.

We think that the judge was correct in excluding Dolan's statements under our present common law rule. The record cannot fairly be read as in any way suggesting that Dolan had actual authority on behalf of the Commonwealth to make statements concerning the cause of the plaintiff's injuries. However, we agree with the plaintiff that the time has come to modify the common law rule regarding vicarious admissions.

The plaintiff raised below and now urges this court to adopt the principles expressed in Proposed Mass.R.Evid. 801(d)(2)(D), and to construe the rule, as courts have construed its Federal counterpart, as not subject to any requirement of firsthand knowledge on the part of the declarant. It is well-settled that Fed.R.Evid. 801(d)(2)(D) does not require such a showing of firsthand knowledge. See Advisory Committee's Note to Fed.R.Evid. 801(d)(2), 28 U.S.C., App'x, Rules of Evid. 716, 717 (1982). See also Union Mut. Life Ins. Co. v. Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir.1986); United States v. Southland Corp., 760 F.2d 1366, 1376-1377 n. 4 (2d Cir.1985) (dictum); United States v. Ammar, 714 F.2d 238, 254 (3d Cir.), cert. denied sub nom. Stillman v. United States, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); MCI Communications v. American Tel. & Tel. Co., 708 F.2d 1081, 1143 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); Mahlandt v. Wild Canid Survival & Research Center Inc., 588 F.2d 626, 630-631 (8th Cir.1978). Rather, the lack of firsthand knowledge may be considered in determining the weight to be accorded the statement, MCI Communications v. American Tel. & Tel. Co., supra, and whether admissibility should be denied under Fed.R.Evid. 403, under which otherwise admissible evidence may be excluded in the judge's discretion if its probative value is substantially outweighed by the danger of unfair prejudice to the party opposing its admission. Mahlandt, supra at 631.

We agree that proposed rule 403, rather than proposed rule 801(d)(2)(D), is the appropriate vehicle for consideration of the firsthand knowledge issue, as well as of a number of other factors which logically should enter into the balancing of probative value and potential for prejudice. Adoption of the principles expressed in rules 801(d)(2)(D) and 403, will not automatically result in the admissibility of vicarious admissions of questionable reliability. Rather, this approach will simply remove vicarious admissions from the blanket interdiction of the hearsay rule. Instead, discretion is vested in the judge to determine whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice to the opponent of its admissibility. This determination, which should take place outside the hearing of the jury, see Proposed Mass.R.Evid. 104(c), takes into account the particular circumstances of each case, including the credibility of the witness; the proponent's need for the evidence, e.g., whether the declarant is available to testify; and the reliability of the evidence offered, including consideration of whether the statement was made on first-hand knowledge and of any other circumstances bearing on the credibility of the declarant. In short, this approach rejects a rigid per se rule in favor of a flexible, fact-sensitive standard applied on a case-by-case basis. We think that this is the better approach, and so today adopt the principles expressed in Proposed Mass.R.Evid. 801(d)(2)(D) and 403. In doing so, we are mindful of the risk that abrogation of our common law rule may lead to the introduction of unreliable evidence to the unfair prejudice of the litigants. We think, however,...