Loschiavo v. Port Authority

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Bernstein, J.), dated February 21,1980, in favor of defendant National Airlines, Inc., upon a jury verdict. Judgment affirmed, without costs or disbursements. This is an action to recover damages, inter alia, for personal injuries sustained by plaintiff Joseph Loschiavo when he was disembarking from an aircraft owned and operated by defendant National Airlines, Inc. Mr. Loschiavo contended that while he was walking through a corridor, known as a “jetway”, from the aircraft to the terminal building, he tripped upon a raised carpet divider and was thereby caused to fall and sustain injury. The question at the trial was whether the divider constituted a dangerous and defective condition and, if so, whether defendant National had actual or constructive knowledge thereof. After plaintiff fell in the corridor, a Mr. Valanski, who was employed by National as its “ramp service agent”, came to his assistance. The only issue raised on appeal is the claim that the trial court erred in ruling inadmissible, as direct proof that defendant National had actual notice of a dangerous condition, a certain statement allegedly made by Valanski to plaintiff to the effect that other persons had tripped and fallen at the place where plaintiff fell. It is the long-settled law of this State that an oral or written statement made by an agent may be received in evidence against his principal under the admissions exception to the hearsay rule only if it was spoken or written within the scope of authority of the agent to speak or write for his employer (Richardson, Evidence [Prince, 10th ed], § 253; Fisch, New York Evidence [2d 625 ed], § 800; McCormick, Evidence [2d ed], § 267). Although often criticized, the rule that the declaration of an agent is inadmissible against his principal as an admission unless it was within the scope of the agent’s authority to make it, was reaffirmed, by the Court of Appeals as recently as 1974 in the case of Kelly v Diesel Constr. Div. of Carl A. Morse, (35 NY2d 1, 8). In 1980, in Brusca v El Al Israel Airlines (75 AD2d 798), our dissenting brethren in the case at bar joined in a unanimous Bench of this court which recognized the rule but found that, in that case, the statements were made within the scope of the agent’s authority to speak for his principal. Whatever our views as to the merits or demerits of the requirement that an agent be authorized to make statements on behalf of his principal before those statements will be received against the principal as admissions, we are constrained by considerations of stare decisis to follow the recent pronouncements of the Court of Appeals and of this court on the subject. The testimony established that Mr. Valanski’s duties as a gate agent involved meeting flights, assisting passengers in embarking and debarking from aircraft and reporting accidents and dangerous conditions to his superiors. It was not his job to discuss prior accidents with passengers or the general public. Accordingly, proof of the alleged statement of Valanski did not qualify for admission into evidence against his employer as an admission. The statement in question, made subsequent to plaintiff’s injury, was also not admissible on plaintiff’s direct case against defendant National on the theory that it was made as part of the res gestae of the accident. The term res gestae has been rightly criticized because of its vagueness and imprecision (Fisch, New York Evidence [2d ed], § 1003; Richardson, Evidence [Prince, 10th ed], § 279; McCormick, Evidence [2d ed], § 288). Generally, today the term res gestae is considered to encompass the following four different conceptual exceptions to the hearsay rule: (1) declarations of present bodily condition, (2) declarations of present mental states and emotions, (3) excited utterances and (4) declarations of present sense impressions (see McCormick, Evidence [2d ed], § 288; Fisch, New York Evidence [2d ed], §§ 995, 997, 1000, 1002; cf. Proposed Code of Evidence for the State of New York, § 803, subds [l]-[4]). The alleged statement of Valanski falls within none of these recognized exceptions to the hearsay rule. It does not concern bodily condition or present mental state. It was not an excited utterance since it was not a spontaneous response to a startling event. It was not a declaration concerning a present sense impression because narratives of past events which merely relate to the event which is being perceived by the declarant lack the contemporaneousness required for admission into evidence (Commentary, Proposed Code of Evidence for the State of New York, § 803, p 178; McCormick, Evidence [2d ed], § 298). Moreover, the theory that so-called “res gestae” statements of an agent should be admissible against his principal is based upon the rationale that those statements serve to explain the acts of the agent upon which the liability of the principal is to be predicated (2 Jones, Evidence [6th ed], § 10:15). To be admissible against a principal as part of the res gestae, the declarations of the agent must be contemporaneous with the event in issue, made in, and as a part of the business entrusted to the agent, and calculated to unfold its nature and characterize its action so that acts and declarations combine to form one transaction (29 Am Jur 2d, Evidence, § 725; Packet Co. v Clough, 87 US 528, 540-542; Luby v Hudson R.R. Co., 17 NY 131; Golden v Horn & Hardart Co., 244 App Div 92, affd 270 NY 544; Vadney v United Traction Co., 188 App Div 365; Molino v City of New York, 195 App Div 496). The statement sought to be admitted in the case at bar is not of that sort. Plaintiff does not predicate National’s liability upon the action or inaction of Valanski. Rather he seeks to use Valanski’s statement to charge National with notice of the condition 626 alleged to have caused the accident. Accordingly, Trial Term did not err in excluding the testimony in question and the judgment appealed from should be affirmed. Damiani, J. P., Mangana and Cohalan, JJ., concur.