Pappas v. Middle Earth Condominium Association

United States Court of Appeals for the Second Circuit · 1992 · Evidence

963 F.2d 534 (2d Cir. 1992)

Updated August 22, 2026

EvidenceHearsayVicarious admissionsTrial advocacy and prejudiceRule 801(d)(2)(D)agent admissionemployee statementcircumstantial evidence

Facts

After arriving at a Vermont condominium near a ski area, plaintiff slipped on a dome of ice on a walkway and suffered severe ankle injuries. The management company was responsible for maintaining the property, including snow and ice removal, and its personnel manager acknowledged awareness of icy walkway problems and that night-shift employees responded to complaints. After the fall, a member of plaintiff's group called the management company to complain, and an unidentified employee arrived with a shovel and bucket. The district court excluded testimony about that employee's statements concerning complaints about maintenance, ruling that plaintiff had not laid a sufficient foundation as to identity and scope of employment.

Issue

Whether the district court erred in excluding the unidentified employee's statement under Federal Rule of Evidence 801(d)(2)(D), and whether defense counsel's summation improperly appealed to regional bias so as to require a new trial. More specifically, the court had to decide what foundation is necessary for admission of an employee's statement and whether the summation created prejudice affecting the verdict.

Rule

Under Federal Rule of Evidence 801(d)(2)(D), a sufficient foundation for a vicarious admission requires proof of (1) the existence of an agency relationship, (2) that the statement was made during the course of that relationship, and (3) that the statement concerned a matter within the scope of the agency. The employee need not have authority to make damaging statements; it is enough that the employee had authority to act on the matter discussed, and the existence and scope of the agency may be established by circumstantial evidence, though the statement itself cannot alone establish agency. Appeals to a jury's regional bias are wholly improper in federal court, and when such comments are permitted over objection without curative instruction and may have influenced the verdict, a new trial is required.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a winter storm in Portland, Maine, Lena Ortiz slipped on ice outside her apartment building. Her roommate called the building's management number to complain, and fifteen minutes later an unidentified man wearing coveralls arrived carrying a salt spreader and ice scraper; he said, "We've been getting calls about this entrance since dinner."

If Lena offers the roommate's testimony about the man's statement against the management company, and the company objects that the declarant was never identified by name, how should the court rule?

Explanation. A sufficient foundation under Rule 801(d)(2)(D) requires proof of agency, that the statement was made during the relationship, and that it concerned a matter within the scope of employment. The majority held that identity need not be established by name if circumstantial evidence shows the person was the employer's employee acting on the relevant task. Here, arriving in response to the complaint with ice-removal tools strongly supports that inference.