Watch Out for your Employees and Agents

What your employees say can (and will) hurt you.

The Basics of Hearsay and Personal Knowledge

One of the principles of basic evidence law is that a witness cannot testify to a fact, an observation, or event, unless that witness can establish “personal knowledge” of such fact, observation, or event.  The new Code of evidence affirms this rule in O.C.G.A. §24-6-602.  In general, witnesses are not permitted to repeat what they were told by someone about an event.  Although the definition of hearsay is more complicated, merely repeating what another person says falls into the classic definition of hearsay.

As with everything, there are exceptions.  One is the rule relating to an admission by a party.  An admission is a statement that is inconsistent with the position taken by a party in a dispute.  An example would include a defendant in an automobile collision claim admitting to the investigating officer that he or she ran a red light or rolled through a stop sign.   That officer could testify to what was told to the officer by the defendant, even if that defendant is not available to testify at trial.  Furthermore, to be admitted as an admittion does not require that the party, or person making the statement, show personal knowledge of the statement made.   If the same defendant in the automobile collision described above did not see the traffic light in question, or did not know whether he or she stopped at the sign, the fact that that defendant did not have “personal knowledge” of those facts has no bearing on the admissibility of the admission.

Application to Your Company’s Employees

These principles apply as well to agents or employees of parties.  Under prior Georgia law, the ability to offer into evidence a statement made by an agent or employee of a corporate entity was restricted by several Code sections.  The new Code, however, is much more liberal in allowing these statements into evidence.  Any statement made by a party’s agent or employee concerning a matter within the scope of that agency or employment made during the existence of that relationship can be an admission against the corporate party represented by the agent or employee.  Here again, the rule about personal knowledge of the events in question does not apply.  One recent case illustrates this principle.  The case of Emory Health Care vs. Pardue, 328 Ga. App. 666 (2014), involved an elderly patient at an Emory facility who slipped and fell in the bathroom of her hospital room.   There was some discussion between the patient’s family and nursing staff about the patient being left unattended in the bathroom and about a foreign substance on the floor.  The Plaintiff’s daughter had a conversation with one of the nurses who had described the events, and also appeared to laugh when describing what happened to the Plaintiff’s mother.  The Court allowed the Plaintiff’s daughter to testify as to exactly what had been said by the nurse (as well as the laughter by the nurse) without any consideration of whether the nurse had personal knowledge of what occurred at the time of the patient’s fall.

Another interesting case involved a deposition given by the manager of a physicians group in which one of the partners in the group was a defendant in a medical malpractice case.  The physician’s group was also a defendant in the case.  In the deposition, the managing partner of the physicians group gave various opinions about the proper standard of care in treating the patient and also testified concerning assumptions that the witness had made concerning certain diagnostic procedures that may have been performed by the manager’s partner in connection with treatment of the patient.  The Court said that it did not matter whether the witness had personal knowledge concerning how the patient was treated.  The Court also said that as an agent of the practice group, this person could express opinions on the proper standard of care, even though that person may not have been qualified as an expert to give an opinion on the facts of the case and treatment by the physician.

The lesson here is that employees and/or agents of corporate defendants need to be careful making statements based on speculation or conjecture about events that the witness may or may not have observed.  These statements made by an agent to a third party may be admitted as admissions, whereas if that individual is offered as a witness in the case, that witness may not be able to give the same statement without personal knowledge of what occurred.

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