Tullgren v. Phil Lamoy Realty Corp.

484 A.2d 1144, 125 N.H. 604, 1984 N.H. LEXIS 392
CourtSupreme Court of New Hampshire
DecidedOctober 26, 1984
DocketNo. 83-273
StatusPublished
Cited by8 cases

This text of 484 A.2d 1144 (Tullgren v. Phil Lamoy Realty Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tullgren v. Phil Lamoy Realty Corp., 484 A.2d 1144, 125 N.H. 604, 1984 N.H. LEXIS 392 (N.H. 1984).

Opinion

King, C.J.

This case comes before the court on an appeal by the defendant objecting to the admission of certain testimony by the trial court. At issue is the admission of the following evidence:

1. prior oral admission by defendant’s corporate officer who was deceased at the time of trial; and
2. architect’s testimony as an expert witness concerning good architectural practice and design.

The Superior Court (Souter, J.) admitted testimony on both issues, and we affirm the trial court’s evidentiary rulings.

This is an action to recover for injuries sustained by the plaintiff in a fall from the roof of a building which occurred on July 7, 1974, at approximately 8:00 p.m. The building from which the fall took place housed a grocery store owned by the defendant and subleased to the plaintiff by a third party.

On the day of the plaintiff’s injury, the compressors that operated the various refrigerator units in the store were rendered inoperative by an electrical storm, and the plaintiff was called by the store manager to help restore the compressors to service. A refrigerator serviceman was also called to the store to repair the compressors, and he was assisted by the plaintiff while making the repairs. During the repairs to the compressors, which were located on the roof, the plaintiff stepped off the edge of the roof and fell a distance of about twenty feet. At the time the plaintiff fell, it was dark and the roof was not lighted.

The plaintiff suffered injuries to his hip and back as a result of the fall and brought an action sounding in negligence against the defendant to recover for his injuries. The plaintiff claimed that the defendant had breached its duty of care by placing compressors close to the edge of the roof and by failing to provide a protective railing which would have prevented anyone servicing the compressors from falling off the roof. A trial by jury resulted in a verdict for the plaintiff in the sum of fifty thousand dollars.

During direct examination, the plaintiff testified that six weeks before the accident, Phil Lamoy, a stockholder and officer of the defendant corporation, told plaintiff that he was going to have a fence installed around the compressor area because OSHA was bothering him. This testimony was admitted over objection and exception by the defendant.

Additional evidence offered by the plaintiff was the expert testimony of an architect who was questioned as to the proper placement of compressors and protective railings on roofs. The architect testified that in his opinion the compressors were too close to the edge of the roof to allow proper access for maintenance and repair. [607]*607Basing his opinion on good architectural practice and design, the architect testified that some type of a railing should have been provided to prevent a fall from the edge of the roof. The defendant objected to the expert’s testimony, claiming that the opinion relied upon building codes not in effect for the premises at the time of the accident. The court admitted this testimony over the defendant’s objection and exception and ruled that his opinion could be given based upon good architectural practice, without reference to specific building codes.

On appeal the defendant claims that the plaintiff’s testimony relating to the conversation between the plaintiff and Phil Lamoy was hearsay and was improperly admitted. Mr. Lamoy was deceased at the time of trial. In New Hampshire, hearsay rules are governed by case law, with certain statutory exceptions. The defendant claims that the admissibility of that conversation is governed by RSA 516:25, which states:

“Declarations of Deceased Persons. In actions, suits or proceedings by or against the representatives of deceased persons, including proceedings for the probate of wills, any statement of the deceased, whether oral or written, shall not be excluded as hearsay provided that the trial judge shall find as a fact that the statement was made by decedent, and that it was made in good faith and on decedent’s personal knowledge.”

The trial judge did not refer to this statutory exception in making his ruling on the testimony of the prior conversation with the decedent, Mr. Lamoy, nor did counsel’s objection focus on it. Instead, the trial judge determined that the conversation was admissible as an admission by Mr. Lamoy that a potential hazard existed on the property. The plaintiff did not seek to prove that OSHA had taken any action with respect to the defendant, but instead sought to admit Mr. Lamoy’s statement to establish Mr. Lamoy’s knowledge of a hazard existing six weeks before the accident when he was showing the plaintiff the compressors on the roof. We find that the record supports the trial judge’s conclusion that the plaintiff’s testimony with respect to the statement by Mr. Lamoy was admissible as an admission against interest.

The proper analysis of a potential hearsay problem is to consider the common law exceptions under New Hampshire case law and only then, if those exceptions fail to yield admissible evidence, to consider any statutory exceptions which may apply. In this case, the trial judge admitted the statement based upon the New Hampshire [608]*608common law and therefore was never asked to do an analysis under RSA 516:25.

The statement by Mr. Lamoy was an admission of the existence of a potential hazard and of a reasonable remedy to that hazard. Whether or not OSHA was pressuring defendant, the fact that defendant’s corporate officer believed that a guardrail was necessary to prevent a dangerous condition was relevant to the defendant’s duty to take reasonable steps to remedy a hazardous condition on the premises. Admissions are not considered to be inadmissible hearsay evidence, because a party would not cross-examine itself as to its own prior inconsistent statements. 4 Wig-more, Evidence § 1048.7 (Chadbourn Rev. 1972). “Admissions are received in evidence upon the assumption that what a party ‘admits to be true, may reasonably be presumed to be so.’” Sargent v. Alton, 101 N.H. 331, 333, 143 A.2d 411, 413 (1958) (quoting Caswell v. Maplewood Garage, 84 N.H. 241, 244, 149 A. 746, 749 (1930)).

This court has held that the admissibility of an admission by a party’s agent depends upon that agent’s authority to speak for the party. Such authority is governed by the law of agency. Caswell v. Maplewood Garage, 84 N.H. at 244, 149 A. at 749-50; see also 4 Wigmore, Evidence § 1078 (Chadbourn Rev. 1972). Mr. Lamoy made his statement to the plaintiff, about his intention to install a guardrail around the compressors on the roof, when the plaintiff was considering entering into a sublease of the premises from a third party. At the time he made that statement, Mr. Lamoy was a stockholder and officer of the defendant corporation, which owned the-premises. Further, he was showing the plaintiff the building because the plaintiff was considering a sublease of the premises.

This court has looked to the circumstances surrounding a transaction in evaluating whether or not an agent is acting with authority when making an admission. Sargent v. Alton, 101 N.H. at 334, 143 A.2d at 413. A lack of evidence of limitations upon an agent’s authority to make admissions tends to show that the authority existed. Id. The role of Mr.

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Bluebook (online)
484 A.2d 1144, 125 N.H. 604, 1984 N.H. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tullgren-v-phil-lamoy-realty-corp-nh-1984.