Halleck v. Coastal Building Maintenance Co.

JUSTICE DOYLE, specially concurring:

Although I agree with most aspects of the majority opinion, I specially concur because I am concerned that the analysis of the hearsay issue may create a potential for confusion.

In Waechter, this court plainly embraced "the well-established foundation requirements which must be met prior to the introduction of an agent’s statement as an admission by her employer,” as including the authority to speak for the employer. (Waechter, 170 Ill. App. 3d at 374.) It then purported to rely on this requirement as a basis for its refusal to impute the clerk’s knowledge to her employer, as urged by plaintiff under a state of mind nonhearsay theory. Although this seems to me to mix apples with oranges, it does not detract from the court’s pronouncement of the traditional foundational requirements for admitting an agent’s statement as the employer’s admission. I agree, therefore, with Cleary’s observation that Waechter is an adherent to the traditional, common-law requirements, including the authority to speak for the employer. Handbook, § 802.9, at 686.

The trial court, in the present case, was correct in following Waechter as second district precedent that the authority to speak is a foundational prerequisite to the introduction against Coastal of Smith’s "apology” to plaintiff as an admission by a party opponent. In light of the trend in recent appellate decisions following the lead of Federal Rule of Evidence 801(d)(2)(D), I agree with the majority that it is time to abandon the authority-to-speak element. I find no decision of our supreme court which would preclude our doing so. However, I believe we must acknowledge that we are effecting a significant modification in an important rule of evidence governing party opponent admissions. Accordingly, I believe the majority should have clearly disavowed Waechter’s allegiance to the "old” rule. Instead, by undertaking to distinguish Waechter, we may be read as implying that the "well-established foundation requirement” of the authority to speak may still have viability in other circumstances.

Moreover, the majority opinion appears to suggest that Smith’s statement of apology to plaintiff could be admitted against him to prove his own negligence, which negligence could then be imputed to his employer under the principle of respondeat superior. As the trial court noted, Smith was not named as a party to the lawsuit.

The majority has cited no authority for the proposition that, in the absence of another hearsay exception, the statement of a nonparty could be admitted as an admission of a party opponent to prove the nonparty’s negligence. The appellate court in Taylor v. Checker Cab Co. (1975), 34 Ill. App. 3d 413 , appears to hold to the contrary. I submit that the only legitimate theory of admissibility in this case is that Smith’s statement qualified as an admission by a party opponent, i.e., Coastal, because Smith spoke as Coastal’s agent. It is unclear from the majority’s respondeat superior discussion of this issue whether it may intend that an agent’s statement may be admitted as the employer’s party admission only in cases in which, as here, the employer may be vicariously liable for the same agent’s negligence. However, the rule undoubtedly has no such limitation. See Handbook, § 802.9, at 684-87.