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HILLERT v. PRONAV SHIP MANAGEMENT

United States District Court, S.D. New York


July 9, 2004.

EDWARD P. HILLERT, Plaintiff,
v.
PRONAV SHIP MANAGEMENT, INC., Defendant.

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

By letter dated June 10, 2004, plaintiff seeks an in limine ruling concerning the admissibility of certain documents and the resolution of a minor discovery dispute.

This is a Jones Act case in which plaintiff alleges that he slipped and fell on an interior deck of the SS LNG GEMINI on or about May 30, 2000. According to plaintiff, the location of the accident was covered with a wax-removing solution and was extremely slippery.

  The evidentiary dispute before me concerns the defendant's policy of investigating accidents. Plaintiff has submitted an affirmation pursuant to 28 U.S.C. § 1746 in which he states:

As a deck officer, I was aware of the ship's practice and procedure for investigating shipboard accidents. Whenever there was an accident that resulted in an injury aboard the ship an accident report was filled out, and a statement was obtained from every one aboard the ship. Anyone that witnessed or heard the accident was required to write a statement indicating what he or she observed or heard and then sign the statement. Those individuals aboard the vessel that did not witness the accident would sign a form that was called a Non-Witness Statement. The Non-Witness Statement listed every crewmember that did not witness the accident and his/her rating. The crewmember would then fill in where he/she was at the time of the accident and would then sign the Non-Witness Statement. These statements were prepared in the normal course of [the] ship's business.
  At issue presently is the admissibility of the statements prepared by four GEMINI crew members pursuant to the foregoing policy. Plaintiff contends that they are admissible as either admissions, Fed.R.Evid. 801(d)(2)(C) & (D), or as records of regularly conducted activity, Fed.R.Evid. 803(6). If the statements are not admissible on any of the foregoing theories, plaintiff also claims that they should be admitted under the residual hearsay exception, Fed.R.Evid. 807. Defendant contends that they are inadmissible hearsay. For the reasons set forth below, I find that the statements are admissible pursuant to Fed.R.Evid. 801(d)(2)(D).

  Fed.R.Evid. 801(d)(2)(D) defines admissions as including a "statement [that] is offered against a party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. . . ." Evidence that constitutes an admission is not hearsay. Fed.R.Evid. 801(d). Three conditions must be met to satisfy Rule 801(d)(2)(D):(1) there must be an employment relationship between the party and the declarant; (2) the statement must have been made during the course of the relationship, and (3) the statement must relate to a matter within the scope of the employment, Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 538 (2d Cir. 1992), or be made within the scope of the declarant's employment. United States v. S.B. Penick & Co., 136 F.2d 413, 416 (2d Cir. 1943). Defendant does not challenge the existence of the first two elements, but does challenge the existence of the third.

  For an employee's statement to be within the scope of the declarant's employment, "[t]he authority granted in the [employment] relationship need not include authority to make damaging statements, but simply the authority to take action about which the statement relates." Pappas v. Middle Earth Condo. Ass'n, supra, 963 F.2d at 538. See United States v. Lauersen, 348 F.3d 329, 340 (2d Cir. 2003) (In prosecution against physician for false billing, hearsay declaration of employee concerning destruction of files admissible where declarant's duties including maintaining files, notwithstanding claim that declarant's duties did not include destruction of files.)

  The declaration of Steward Assistant Henry Hayes clearly satisfies the third element. Hayes was the crew member who was stripping the wax at the time of plaintiff's claimed accident. His declaration, with the exception of the material described in the footnote, relates directly to the scope of his duties and the alleged accident that resulted from the performance of his duties.*fn1 The statements of the other three declarants — Chief Engineer John Case, Deck Cadet Darin L. Huggins and Chief Mate Larry Dickens — are also admissible. Although plaintiff has not shown that any of these individuals had any responsibilities or duties concerning accident prevention or the maintenance of the deck in the areas of plaintiff's alleged fall, their statements were made in the scope of their employment because the statements were made pursuant to the employer's mandate that required all employees to provide statements concerning shipboard accidents. The statements were made in the scope of the declarants' employment because the statements were made as part of and as a condition of the declarants' employment.

  To the extent that defendant claims the statements are inadmissible because the declarants lack personal knowledge, defendants' arguments are without merit. United States v. Lauersen, supra, 348 F.3d at 340 ("[W]e have not required personal knowledge for statements by a party's agent."). Similarly, the other issues defendant raises concerning the credibility of the declarants and the motive of some of the declarants to testify falsely based on their unions's unsuccessful effort to renew its contract with defendant goes to the weight of their statements, not their admissibility. Finally, defendant's argument ad horrendum that a finding that the statements constitute admissions will result in the corporation's being "bound by — and unable to controvert" statements by low level employees is unfounded. Although I conclude the four statements in issue here are admissible, defendant is not bound by them in any sense. Defendant is free to offer evidence to impeach the credibility of the declarants and is free to offer what ever admissible evidence it wants that would tend to contradict the declarants.

  Since the statements are admissible pursuant to Fed.R.Evid. 802(d)(2)(D), I need not address the other arguments for admissibility made by plaintiff. I note in passing, however, that the admissibility of the statements, pursuant to Fed.R.Evid. 803(6), as records of regularly recorded activity, appears highly doubtful. See generally Palmer v. Hoffman, 318 U.S. 109 (1943).

  Plaintiff also seeks to compel production of that portion of ETC's policy manual that deals with slippery floors and the precautions that need to be taken when a slippery substance is on the floor. Defendant offers no opposition to this aspect of plaintiff's application and plaintiff's application is, therefore, granted.

  Accordingly, for all the foregoing reasons, I conclude that, subject to the exception noted in footnote one, the statements of Steward Assistant Henry Hayes, Chief Engineer John Case, Deck Cadet Darin L. Huggins and Chief Mate Larry Dickens are admissible. In addition, within ten (10) business days of the date of this Order, defendant is directed to produce to plaintiff that portion of ETC's policy manual that deals with slippery floors and the precautions that need to be taken when a slippery substance is on the floor.

  SO ORDERED.


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