Ritz v. Myers

FISCHER, Judge. Appellant, Julia F. Ritz, appeals from an adverse jury verdict entered in the Circuit Court for Howard County (Nissel, J.) in favor of Stuart L. Myers d/b/a Ellicott City Veterinary Clinic. Mrs. Ritz raises five issues for our review: 1. Did the trial court err in excluding testimony of Scott Kaplan as to alleged statements made by John Jones, a clinic employee? 2.

Did the trial court err in excluding deposition testimony of Scott Kaplan considering at the time his deposition was offered Kaplan was in Virginia and unable to return to Maryland to testify? 3. Did the trial court err in refusing to allow evidence of subsequent measures taken by Myers to remedy the problem of the sinkhole? 4. Did the trial court err in refusing to permit appellant’s construction expert to testify regarding the standard of care applicable to certain construction? 5. Did the trial court err in instructions to the jury?

On January 26, 1986, appellant was leaving Myers’ clinic with her dog. While she was walking across the front lawn, the ground beneath her left leg gave way and her left leg sank approximately two to three feet in the ground. Julia Ritz stated that, immediately after her fall, John Jones, a veterinary assistant working at the clinic, stated, “You’re very lucky, because there have been other holes bigger than this, and you could have sunk all the way down.” In her case in chief, appellant attempted to introduce testimony of alleged admissions made by John Jones to Scott Kaplan, an investigator retained on behalf of appellant. The trial court refused to permit Kaplan to testify as to statements allegedly made by Jones to Kaplan approximately two weeks following the occurrence.

After his testimony was completed, Kaplan was excused, and he returned to Virginia. Jones, testifying on appellee’s behalf, ⁷¹⁹ stated, on cross-examination, that he did not make the statements attributed to him by Kaplan. Appellant then moved to read excerpts from Kaplan’s deposition, but permission was denied by the court. The court also refused to permit appellant to question Myers as to remedial measures taken by him in response to the sinkhole or other holes in the front yard.

In addition, the court did not allow testimony from John Heyn, an expert in construction, from whom appellant wished to elicit testimony in connection with the cause of the sinkhole and whether there was a breach, attributable to appellee, in the standard of care utilized during the excavation and backfilling of the construction site in 1963. Appellant also excepted to the failure of the trial court to give certain requested instructions to the jury. I. Did the trial court err in excluding testimony of Scott Kaplan as to alleged statements made by John Jones, a clinic employee? In an effort to establish that Myers had notice of sinkholes in his front yard, appellant wished to introduce as evidence statements allegedly made by John Jones, a longtime clinic employee.

Appellant was permitted to testify that at the time of the occurrence Jones told her she was “very lucky, because there have been other holes bigger than this and you could have sunk all the way down.” Scott Kaplan, an investigator hired by appellant, proffered testimony to the court that he spoke with Jones two weeks after the accident and Jones told Kaplan he had used concrete and blacktop to fill the hole into which appellant had fallen because Jones feared the area might again collapse. Jones purportedly also told Kaplan that there had been previous problems with other sinkholes in the front yard. The trial court excluded the testimony, ruling that it was inadmissible hearsay for reason that “agency was [not] ⁷²⁰ established to allow that particular hearsay as an admission against interest of principal, agent, master, servant.” Generally, admissions by a party or his representative are an exception to the hearsay rule. In Smith v. Branscome, 251 Md. 582, 589 , 248 A.2d 455 (1968), the Court of Appeals quoted Lambros v. Coolahan, 185 Md. 463, 468 , 45 A.2d 96 (1945), which stated: ‘[0]ral admissions of a party “are universally deemed admissible” and legally sufficient to prove facts admitted.

Wigmore, Secs. 1048, 2075.’ For a statement by a non-party to be binding on a party, there must be some relationship between the party making the statement and the party against whom it is offered. Aetna Casualty & Surety Co v. Kuhl, 296 Md. 446 , 463 A.2d 822 (1983). The agency relationship must be proved “before the admission of an alleged agent can be offered to bind the principal.” Wells v. Hecht Bros. & Co., 155 Md. 618, 623 , 142 A. 258 (1928). It must also be demonstrated that the statement was made while the agent was acting within the scope of his authority, Grzboski v. Bernheimer-Leader Stores, 156 Md. 146, 148 , 143 A. 706 (1928), and “relate to an act he is authorized to perform.” Burkowske v. Church Hosp.

Corp., 50 Md.App. 515, 519 , 439 A.2d 40 , cert. denied, 293 Md. 331 (1982). Burkowske, 50 Md.App. at 520 , 439 A.2d 40 (citations omitted), also makes clear that “in order to bind the principal (and thus constitute an admission by it), the agent’s statement not only must concern matters within the scope of his own agency authority but must also be part of the res gestae, i.e. made contemporaneously with the transaction to which it relates.” 1 Appellant insists that the. latter requirement “has been soundly criticized by court and commentators alike” and should not be adhered to by this Court. We are ⁷²¹ not, however, free to disregard clearly established law. Jones’ statement to Kaplan was properly excluded.

II

Did the trial court err in excluding deposition testimony of Scott Kaplan? Scott Kaplan, an investigator for appellant, was produced by the appellant to testify with respect to findings of his investigation. At the conclusion of his testimony, both plaintiff and defendant excused Mr. Kaplan from further participation in the trial, and he was permitted to return to Virginia. Subsequently, John Jones testified for appellee with respect to the lack of prior problems with sinkholes.

Appellant wished to recall Mr. Kaplan to rebut the statements made by Jones. Being unsuccessful in persuading Kaplan to return to Howard County to testify, appellant attempted to introduce Kaplan’s deposition. The trial judge refused to permit the deposition to be read. The judge apparently found that it was appellant’s fault that the witness was unavailable, because appellant acquiesced in permitting Kaplan to leave the State prior to completion of the trial.

We believe that in denying appellant the opportunity to utilize the deposition, the trial judge erred. Under the circumstances of this case, however, we believe the error was clearly harmless. Maryland Rule 2-419(a)(8)(B) provides that a deposition of a witness may be used for any purpose if the witness is out of the State and his absence was not procured by the party offering the deposition. All of the requirements of the rule were met.

The witness was out of the State and the Court found as a matter of fact that the witness’s absence was not procured by appellant. The judge erred in adding an additional requirement not contemplated by the rule i.e. that the party offering the deposition could have, with foresight, prevented the witness from leaving the State. We believe the error to be harmless because the testimony of Mr. Kaplan would not have constituted sub ⁷²² stantive evidence that appellant had notice of prior sinkholes. The only permitted use of Kaplan’s testimony was to impeach the credibility of Jones who denied making the statements attributed to him by Kaplan.

In his direct testimony, Jones stated that he had never before seen a sinkhole in the yard. The only holes observed by him were little holes dug by dogs. Michelle Deltura, office manager of the Ellicott City Veterinary Clinic, testified that she had been working at the clinic for fifteen years and she had never seen a hole similar to the one into which appellant fell. Daryl Mister testified that she had been an employee of the clinic for over ten years and had never seen any holes in the front lawn.

In addition, Dr. Stuart Myers, appellee, testified that he had never been advised of nor had he personally observed any holes in the front lawn. The only thing he had seen resembling a hole were depressions dug by dogs being walked on the lawn. He further stated that he had never experienced problems with sinkholes prior to appellant’s accident. Even more telling was appellant’s testimony on deposition wherein she stated that no one had stated anything to her concerning prior holes but merely asked of her physical condition.

In view of the cumulative testimony indicating lack of any prior notice of sinkholes coupled with the absence of any evidence adduced by appellant on the subject, the failure of the trial judge to admit Mr. Kaplan’s deposition to challenge Jones’ credibility was harmless error.

III

Did the trial court err in refusing to admit evidence of remedial measures? Appellant attempted without success to introduce evidence of actions taken by appellee subsequent to the accident to correct the problem of sinkholes and cave-ins in his