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Smith v. Pathmark Stores

April 30, 2007


The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge


Defendant Pathmark Stores, Inc. ("Pathmark") brings this motion in limine seeking to exclude the testimony at trial of plaintiff Nyema Smith ("Smith") regarding statements allegedly made by a Pathmark employee following Smith's slip-and-fall at a Pathmark store on February 14, 2004. (See docket nos. 19, 23-25.) The parties dispute whether the employee's statements are properly admitted as non-hearsay under Federal Rule of Evidence 801(d)(2)(D), which permits vicarious admissions against interest by a party's agent or employee. For the reasons stated below, the court finds that sufficient facts have been established to permit the challenged testimony to be admitted into evidence at trial and denies Pathmark's motion in limine.


The deposition statements of Smith and certain Pathmark employees provide the facts relevant to the present motion. Smith alleges that on February 14, 2004, while shopping at the Atlantic Center Pathmark, she turned into the detergent aisle, walked two feet into the aisle, slipped and fell. (Docket no. 19, Ex. A, Deposition of Nyema Smith ("Smith Dep.") at 89-91.) After her fall, she observed an open bottle of laundry detergent resting straight up on the floor, and realized that she was sitting in a puddle of blue liquid detergent, roughly three feet in circumference. (Id. at 97, 99-101.) Smith did not hear any public announcements prior to her fall, did not know how long the bottle or the detergent were present on the floor, and never learned know how the detergent came to be present on the floor. (Id. at 94, 97, 99.)

Following her fall, an unidentified woman told Smith that she had advised store personnel about the existence of detergent on the floor. (Id. at 102.) Smith remained on the floor for approximately ten minutes when she was approached by an African-American male whom she believed to be a Pathmark employee. (Id. at 17, 20.) Smith did not recall if the individual introduced himself by name to her, and she never learned the name of the employee. (Id. at 17-18.) However, the individual was wearing a tag with a "Pathmark" logo on it. (Id. at 18.) According to Smith, the individual told her that "he was sorry for my slip and fall, that he was supposed to clean it up .. ." (Id. at 18, 20.) It is this alleged statement that defendant seeks to exclude in its motion in limine.

Smith states that she was next approached by two Pathmark managers, who purportedly told her that "they were sorry" about her accident. (Id. at 18, 22.) Smith provided her name and phone number to the managers and, about fifteen minutes after her fall, was taken by ambulance to Brooklyn Hospital. (Id. at 16-17, 27.)

Ramon Sanchez, the general store manager, stated in his deposition that he learned about the incident when a customer came to the manager's office and notified him that someone had fallen in the detergent aisle. (Docket no. 23, Ex. E, Deposition of Ramon Sanchez ("Sanchez Dep.") at 12.) Sanchez and one of the assistant store managers, either Kevin Carter or Kevin Johnson, went immediately to the aisle to assist the customer.*fn1 (Id. at 20.) Sanchez stated that he and the assistant store manager were the first employees to appear at the scene of the accident, and that maintenance employees appeared soon after. (Id. at 36.) Sanchez and the assistant store manager asked Smith if she was okay and if she needed medical assistance, called an ambulance, and used paper towels to help clean Smith up. (Id. at 22, 23.) According to Sanchez, no maintenance employees ever said that they heard about the spill prior to Smith's accident. (Id. at 50.)


Federal Rule of Evidence 801(d)(2)(D) defines vicarious admissions against interest by a party's agent or servant, and provides that:

A statement is not hearsay if . . . [it] is offered against a party and is . . . 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 . . . .

As the Second Circuit has noted, the admission into evidence of such statements is not subject to many of "the technical prerequisites of other evidentiary rules" and "should be granted freely." Pappas v. Middle Earth Condo. Assoc., 963 F.2d 534, 537 (2d Cir. 1992). The reliability of admissions by a party's employee is grounded on two premises: first, that "an employee is usually the person best informed about certain acts committed in the course of his employment," and second, "that while still employed an employee is unlikely to make damaging statements about his employer, unless those statements are true." Id.

A party seeking to introduce a vicarious admission under Rule 801(d)(2)(D) must establish: (1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency. Id. The existence of the agency relationship may be established by circumstantial evidence, although the statement to be introduced may not alone be relied on to establish the existence of the alleged agency relationship. Id. Indeed, the Rule itself specifies that:

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under . . . the agency or employment relationship and scope thereof . . . . Fed. R. Evid. 801(d)(2). See also Advisory Committee Notes to 1997 Amendment to Fed. R. Evid. 801.

Applying these principles to the case at hand, the court finds that sufficient circumstantial evidence exists to permit the admission at trial of Smith's testimony regarding the Pathmark employee's statement that "he was sorry for ...

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