Marjetta Wilkinson, Plaintiff-appellee, v. Carnival Cruise Lines, Inc., Defendant-appellant, 920 F.2d 1560 (11th Cir. 1991)

Defendant-appellant Carnival Cruise Lines, Inc. ("Carnival") appeals from a final judgment entered in favor of plaintiff-appellee Marjetta Wilkinson for personal injuries sustained by plaintiff in an accident aboard one of Carnival's cruise ships. Although we AFFIRM the district court's refusal to grant Carnival a requested jury instruction on plaintiff's susceptibility to psychiatric injury, we agree with Carnival that the trial court improperly admitted certain hearsay statements, as well as evidence of a subsequent remedial measure. We therefore REVERSE the judgment of the district court and REMAND for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Marjetta Wilkinson was a passenger on board the "Tropicale," a cruise ship owned by Carnival. On the afternoon of September 30, 1983, after sunning herself for a short time by the pool on the Lido Deck, Ms. Wilkinson left the pool area and walked barefoot towards an automatic, electronically activated sliding glass door on the port side of the ship. As she walked through the door, it closed, running over the toes of her right foot.

Ms. Wilkinson sued Carnival, seeking recovery based upon a negligence theory.¹  She alleged, among other things, that Carnival had failed to maintain the sliding glass door in good operating condition, had failed to warn her of the door's propensity to close without warning, and that the door had failed to operate in a reasonable and safe manner.

As the parties proceeded to trial, Carnival filed a motion for summary judgment, which the trial court referred to a magistrate for consideration, report and recommendation. In its motion, the cruise line contended that the mere occurrence of Ms. Wilkinson's accident, standing alone, did not prove negligence. Further, Carnival argued that the plaintiff could offer no admissible evidence that Carnival had notice of any problems with the sliding glass door before the plaintiff's accident.

Plaintiff responded by characterizing the matter as a "classic, garden variety negligence issue for the jury." With regard to the notice issue, plaintiff submitted the deposition testimony of Tracie Sanders, Ms. Wilkinson's travelling companion and cabin-mate.²  Although Ms. Sanders did not witness the accident, she testified to having a conversation with a cabin steward, identified simply as "Fletcher,"³  shortly thereafter. According to Sanders, the stewardcame in and we were discussing the accident, he was wondering what had happened, and after I told him, he was real--you know, he felt real bad and said that he hated that that had happened and that they had been having problems with the door and that he was, you know, hoping they would get it fixed before it happened to a child, because there were children on the ship.

Deposition of Tracie Sanders, (R4-63 at 20).⁴ 

Carnival argued that Ms. Sanders' alleged exchange with Fletcher was inadmissible hearsay and could not be used to prove notice on the defendant's part of any problem with the door in question. Plaintiff, however, countered that steward Fletcher's statement constituted a vicarious admission by the cruise line through its employee, and was therefore not hearsay pursuant to Fed.R.Evid. 801(d) (2) (D).

In response to plaintiff's contention that Fletcher's statement was an admission by Carnival, defendant submitted the affidavit of Jack Stein, an employee of Carnival's Operations Department. The affidavit declared that room stewards, cabin stewards and bellboys are the most junior employees aboard Carnival's vessels; that the function of room stewards is to clean rooms; and that room stewards are not authorized to speak or make admissions on behalf of Carnival, or to work on or speak about electrically operated sliding glass doors. Most important, Stein stated that room stewards are restricted to crew areas of the ship; they are not permitted to be in the passenger area near the pool where the sliding glass door that injured Ms. Wilkinson is located. Applying Rule 801(d) (2), the magistrate found that "the affidavit establishes that the statement made by a room steward to Ms. Sanders did not concern a matter within the scope of his agency or employment and therefore is inadmissible hearsay." Accordingly, the magistrate recommended that summary judgment be entered in favor of Carnival on the issue of negligence.

The district court overruled the Report and Recommendation of the magistrate as to the propriety of summary judgment, despite acknowledging that plaintiff's claims were "weak, at best," and "a step away from being foreclosed by the sliding doors of summary judgment." Defendant renewed its objection to the admissibility of the Fletcher statement at the beginning of the trial, moving in limine that the statement should be excluded as hearsay. The district court denied the motion, permitting the statement to come into evidence as an admission by a party-opponent under Rule 801(d) (2) (D), and expressly overruling the Magistrate's Report and Recommendation on the merits.⁵ 

In the same Motion in Limine, defendant also sought to preclude plaintiff from offering any evidence of subsequent remedial measures taken by Carnival. Specifically, several passengers testified that following Ms. Wilkinson's accident, the sliding glass door was kept locked in an "open" position for the remainder of the voyage. The trial court initially denied defendant's motion to have such testimony excluded, and evidence of the door being kept open was admitted over objection. The court reversed its ruling the next day, acknowledging that Carnival's keeping the door locked in an open position was a type of remedial measure. It instructed the jury to disregard witness testimony "to the effect that the doors in question had been kept open for the remainder of the cruise."⁶ 

As the trial progressed, the jury heard the videotaped deposition of Rafael Marcialis, a ship's officer working on board the Tropicale. Marcialis had inspected the door immediately following Ms. Wilkinson's accident. After conducting several walk-throughs, he determined the door to be in "normal operating condition." In addition, Marcialis rendered an opinion that the door allowed adequate time for a person to pass through, and that it had been properly maintained. Marcialis stated that he was not aware of any prior or subsequent accidents involving the sliding door in question.⁷ 

Because Marcialis had testified that upon inspection the sliding door was in "normal operating condition," the district court determined that the door had been sufficiently opened (no pun intended) for plaintiff to reintroduce the evidence of the subsequent remedial measure--the locking of the door in an open position for the remainder of the cruise--for impeachment purposes.⁸  The court therefore allowed the plaintiff to introduce the previously excised testimony of several witnesses pertaining to the open status of the door.⁹ 

The jury ultimately found in favor of the plaintiff and awarded her $260,000 dollars. This figure was reduced by twenty percent as a result of plaintiff's comparative negligence. The court entered a final judgment for plaintiff, and denied defendant's motions for judgment notwithstanding the verdict, or alternatively, for new trial or remittitur. This appeal followed.

DISCUSSION

I. Admissibility of the Cabin Steward's Hearsay Statement.

We first consider the admissibility of certain alleged comments by a room steward, identified only as "Fletcher," to the effect that the Tropicale "had been having problems with the door and that [the steward] was ... hoping they would get it fixed before it happened to a child." This testimony, adduced at trial through the video deposition of Tracie Sanders, was vital to the plaintiff's case, as it was the only evidence offered to prove that Carnival had actual or constructive notice of the risk-creating condition, i.e. previous problems with the sliding door in question.¹⁰ 

The district court admitted the Fletcher statements as relevant, non-hearsay testimony pursuant to Rule 801(d) (2) (D) of the Federal Rules of Evidence. This Rule provides that a statement is not hearsay if it is offered against a party and is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d) (2) (D). Carnival contends that such a ruling was reversible error, and that the district court should have adopted the evidentiary recommendation of the magistrate, who found that the cabin steward Fletcher's statement to Tracie Sanders did not concern a matter within the scope of his agency or employment, and was therefore inadmissible hearsay. We agree.

Nothing in Rule 801(d) (2) (D) prevents the out-of-court statements of low-level employees from coming into evidence as non-hearsay admissions of a party-opponent in appropriate factual scenarios. See, e.g., Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F. Supp. 1190, 1247 (E.D. Pa. 1980) (requirement "of managerial responsibilities, if it remains valid after the enactment of the [Federal Rules of Evidence], is pertinent only to authorized admissions" under 801(d) (2) (C), and "not to vicarious admissions" under 801(d) (2) (D)). We wholeheartedly agree with the district court that "the position of the individual in the so-called corporate hierarchy is not in and of itself determinative of an 801(d) (2) (D) type of issue." From this observation, however, the district court concluded that simply because Fletcher was a member of the Tropicale's crew, his statement to Ms. Sanders was covered by the language of Rule 801(d) (2) (D). Respectfully, we believe that such a conclusion begs the question.

The appropriate focus is instead upon whether the cabin steward's statement concerned a "matter within the scope of [his] agency or employment" with Carnival. We recognize, as suggested in the Notes of the Advisory Committee, that Rule 801(d) (2) (D) broadened the traditional view so that it is no longer necessary to show that an employee or agent declarant possesses "speaking authority," tested by the usual standards of agency law, before a statement can be admitted against the principal. See 4 J. Weinstein & M. Berger, Weinstein's Evidence p 801(d) (2) (D), at 801-280-89 (1990); S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 727 (4th ed. 1986). But it is necessary, in order to support admissibility, that the content of the declarant's statement concerned a matter within the scope of his agency. Hill v. Spiegel, Inc., 708 F.2d 233, 237 (6th Cir. 1983); see, e.g., Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 572 (8th Cir. 1989) (in tort suit brought by handicapped minor against airline, trial court did not abuse discretion in refusing to admit derogatory remarks of airline employees as vicarious admissions, where employees were non-management personnel who were not involved in decision to keep minor from boarding aircraft); Staheli v. Univ. of Mississippi, 854 F.2d 121, 127 (5th Cir. 1988) (in decision affirming denial of university professor's tenure, proffered testimony of fellow accounting professor was not an admission where accounting professor had nothing to do with tenure decision and testimony did not concern matter within scope of his agency); Miles v. M.N.C. Corp., 750 F.2d 867, 874-75 (11th Cir. 1985) (in plaintiff's Title VII suit against employer, nature of supervisory positions held by declarant determined admissibility of evidence of alleged racial slur as vicarious admission of employer); Cebula v. General Elec. Co., 614 F. Supp. 260, 266 (D.C.Ill.1985) (in age discrimination suit against employer, statements of low-level co-workers could not be attributable to employer as admissions, and thus constituted inadmissible hearsay, where plaintiff offered no evidence to suggest that any of the co-workers was involved in the termination decision, or was speaking as to a matter within the scope of their agency or employment).

Thus, the inquiry is whether Fletcher was authorized to act for his principal, Carnival, concerning the matter about which he allegedly spoke. See Process Control v. Tullahoma Hot Mix Paving Co., 79 F.R.D. 223, 225 (1977). In this case, in support of its Reply to Plaintiff's Response to Motion for Summary Judgment, Carnival attached the affidavit of Jack Stein, one of its Operations Department employees. Stein stated, in pertinent parts:

5. The function of a room steward is to clean rooms. Room stewards do not work in the engineering department. They are not mechanics, electricians, ship's officers or sliding glass door repairmen.

6. Room stewards are restricted to crew areas of the ship except for those areas in which they work. A cabin steward such as the "Fletcher" described in the deposition of Tracie Sanders could only work in the passenger area where rooms he serviced were located and in the adjacent service areas (to get ice, food, etc.). Room stewards are not authorized to be in the area of the sliding glass door (near the swimming pool) where Ms. Wilkinson says she was when injured. That is a passenger area.

(R4-65). The magistrate found, and we agree, that Stein's affidavit established "that the statement made by a room steward to Ms. Sanders did not concern a matter within the scope of his agency or employment," and therefore was hearsay.¹¹ 

Plaintiff argues that Carnival has not properly preserved the issue on appeal, because "at no point from the beginning of the trial until the time of the jury's verdict did Carnival ever object to the 'Fletcher' statement on the specific ground that cabin stewards were not permitted to be on the deck where Mrs. Wilkinson was injured." Brief of Appellee at 10. On this point, plaintiff has apparently misunderstood its burden. It is well established that "Rule 801(d) (2) (D) requires the proffering party to lay a foundation to show that an otherwise excludible statement relates to a matter within the scope of the agent's employment." Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986) (citing Hoptowit v. Ray, 682 F.2d 1237, 1262 (9th Cir. 1982)) (emphasis added); see Mitroff v. Xomox Corp., 797 F.2d 271, 276 (6th Cir. 1986); Lloyd v. Professional Realty Servs., Inc., 734 F.2d 1428, 1433 (11th Cir. 1984) (per curiam); Litton Systems, Inc. v. American Telephone & Telegraph Co., 700 F.2d 785, 817 (2d Cir. 1983). As one district court has aptly observed with regard to Rule 801(d) (2):

[A]lthough the necessary proof may certainly be circumstantial, there must be an adequate foundational showing, as to subsection (C), that the agent or servant was in fact authorized to make the statement in question, or as to subsection (D), that the subject of the statement 'concerned a matter' which was within [the] scope of the speaker's agency or employment. Merely showing that a statement was made by one who is identified generally as an agent or employee of the party, without some further proof as to the extent of his authority to make the statement (for purposes of subsection (C)) or as to the scope of his employment (for purposes of subsection (D)), establishes neither.

White Industries v. Cessna Aircraft Co., 611 F. Supp. 1049, 1064 (D.C.Mo.1985) (citation omitted).

Carnival has consistently objected to the admissibility of the Fletcher statements as hearsay, and plaintiff has offered not one whit of evidence at any phase of this proceeding to lay a predicate for the admissibility of the statement, or to contradict Stein's assessment of the scope of Fletcher's employment as a cabin steward aboard the Tropicale.¹²  Consequently, the admission of Tracie Sanders' testimony regarding Fletcher under Rule 801(d) (2) (D) was reversible error.¹³ 

II. Evidence of Subsequent Remedial Measure.

Several witnesses testified that at some point following Ms. Wilkinson's accident, the sliding door that injured her was "left in an open position" for the remainder of the cruise. The trial judge correctly determined that such an action constituted a subsequent remedial measure pursuant to Fed.R.Evid. 407.¹⁴  Accordingly, the testimony could not be admitted "to prove negligence or culpable conduct in connection with" the plaintiff's accident. Id. The court later allowed the testimony to be admitted, however, as permissible impeachment of ship's officer Marcialis' testimony that the doors were in "normal operating condition" when he inspected them. After reviewing Marcialis' testimony, we find that the district court abused its discretion in allowing evidence of a subsequent remedial measure into evidence for impeachment purposes.

The second sentence of Rule 407 explicitly acknowledges impeachment as one of the permissible uses for which evidence of subsequent remedial measures may be introduced. Fed.R.Evid. 407; see also Andres v. Roswell-Windsor Village Apartments, 777 F.2d 670, 674 (11th Cir. 1985) (per curiam) (noting Advisory Committee's suggestion of permissible uses of evidence of subsequent remedial measures, including impeachment). Nevertheless, most courts and commentators counsel caution in applying this exception, which may well possess the capacity to engulf the rule. See Petree v. Victor Fluid Power, Inc., 887 F.2d 34, 39 (3d Cir. 1989) (and authorities cited); Bickerstaff v. South Central Bell Tel. Co., 676 F.2d 163, 168 (5th Cir. 1982) (and authorities cited). Care must be taken to insure that Rule 407's impeachment exception is not used merely "as subterfuge to prove negligence or culpability of the defendant." Petree, 887 F.2d at 39. "Although any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach a defendant's testimony that he was using due care at the time of the accident, if this counted as 'impeachment' the exception would swallow the rule." Flaminio v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984).

Second Officer Marcialis testified that on the basis of an inspection performed on the day of Ms. Wilkinson's accident, he determined the door which injured her to be in normal operating condition at the time of the accident. He testified that he was not aware of any accidents involving the door prior or subsequent to Ms. Wilkinson's mishap, and that in his opinion--again based upon his inspection on the day of the accident--the door had been properly maintained.

Because the doors were apparently kept permanently "open" at some unspecified point after the incident, plaintiff suggests that such a measure somehow impeaches or contradicts Marcialis' testimony. We disagree. Marcialis made no statements concerning the functioning of the door in the days subsequent to September 30.¹⁵  He did not assert that the Tropicale's crew or the cruise line had exercised "all reasonable care" in maintaining the door.¹⁶  Nor did he make representations that the door in question was in the "safest" or the "best" condition.¹⁷ 

In short, the evidence of the subsequent remedial measure in this case impeached nothing in Marcialis' testimony. Moreover, admitting various witnesses' testimony to the fact of the doors being kept open likely gave rise to the precise inference of negligence¹⁸  that Rule 407 was designed to avoid.¹⁹  Accordingly, the evidence should have remained inadmissible.

III. "Susceptibility to Psychiatric Injury" Jury

Instruction.

Finally, Carnival contends that the district court erred in failing to give a requested jury instruction stating that should the jury find that the plaintiff would have suffered psychiatric injuries from a non-liable cause even if she had not suffered any injuries on board the Tropicale, then any damages awarded must be reduced to reflect that likelihood.²⁰ 

Our standard of review in considering this issue is deferential. On appeal, we examine whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled. Gregg v. U.S. Industries, Inc., 887 F.2d 1462, 1471 (11th Cir. 1989) (citing Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir. 1985)). The trial judge's refusal to give a requested instruction is not error where the substance of that proposed instruction was covered by another instruction which was given. Pesaplastic, 750 F.2d at 1525 (citations omitted). "If a requested instruction is refused and is not adequately covered by another instruction, the court will first inquire as to whether the requested instruction is a correct statement of the law. Id. In such a scenario, if the requested instruction does accurately reflect the law, the next step is to assess whether the instruction addresses an issue that is properly before the jury. Id. Even if both of these criteria are met, there must still be a showing of prejudicial harm that resulted from the failure of the trial court to give the requested instruction before the judgment will be disturbed on that ground. Id.

In this case, the district court explicitly considered and rejected the requested instruction, deciding that the issue was adequately covered under the general language of the standard aggravation charge dealing with "any aggravation of an existing disease." Moreover, Carnival fully and forcefully argued the point in closing argument. After reviewing the record and the instructions as a whole, we hold that the district court's denial of the requested instruction was proper, and fully within its discretion.

CONCLUSION

For the foregoing reasons, the judgment of the district court is REVERSED and REMANDED for a new trial.