Under the Federal Rules of Evidence, out-of-court statements by an employee are often admissible against the employer as admissions by party-opponent.

Washington, however, follows a more restrictive rule, often called the speaking agent rule. Under the Washington rule, the employee’s out-of-court statements are admissible against the employer only if the employee was, by the nature of his/her job, authorized to speak publicly on behalf of the employer.

In a personal injury action, P alleged that he had been hit by a drunk driver (D1). P sued D1 and also the tavern (D2) where D1 had been drinking. P claimed that D2 had continued to serve alcohol to D1 even after D1 was “apparently intoxicated” (the statutory standard).

D2 moved for summary judgment, saying that P would be unable to produce any evidence to show that D1 as apparently intoxicated in the D2 tavern. D2 pointed out that D1 had been drinking at several taverns and bars on the evening in question, and that D1’s stop at the D2 tavern was early in the evening, before she became intoxicated.

In response, P filed a portion of a deposition given by a witness (W), in which W testified that the bartender (BT) at D2 admitted to W that D1 seemed intoxicated, and that he should not have served drinks to her.

The trial court ruled that BT’s statements were inadmissible hearsay, and that in the absence of any other evidence to support P’s claim against D2, D2 was entitled to summary judgment. P appealed.

On appeal, P argued that BT’s statements were admissible as admissions by party-opponent, but the Court of Appeals disagreed. The Court of Appeals acknowledged that BT’s statements were relevant, but the court said they were nevertheless inadmissible hearsay under Washington’s speaking agent rule. The court stated:

No evidence appears in the record that [BT] was expressly authorized to speak on behalf of [D2]. And a bartender is not necessarily authorized to admit key facts related to liability merely because he is the only server on duty and thus in the position of authority over the service. Absent evidence of express speaking authority, [BT] is not [D2’s] speaking agent and his statement was hearsay. . . .

As a backup argument, P argued that BT’s statements came within the hearsay exception for current state of mind, ER 803(a)(3). Again the Court of Appeals disagreed, saying that the rule expressly says that statements of “memory or belief” are not within the hearsay exception, and that BT’s statements were clearly statements reflecting his memory or belief that D1 appeared intoxicated.

The summary judgment in favor of D2 was affirmed. Ensley v. Mollman, 155 Wn.App. 744, 230 P.3d 599 (2010) (Div.1, Lau, J.). 

The articles reprinted here are excerpted from Karl Tegland’s monthly newsletter, Litigation Today. Each issue of Litigation Today includes Mr. Tegland’s commentary and practice tips in the areas of evidence, civil procedure, appellate procedure, and the right to confrontation. Each issue also includes an in-depth essay on a selected topic, complete coverage of all rule amendments, and citations to leading law review articles from the preceding month.

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