Id.The Estate asserts that this court's opinion in Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64 (Fla. 4th DCA 1970), supports admission of this proffered testimony. In Thee, a plaintiff sued a nursing home after she fell on a substance that looked like spilled milk. At trial, plaintiff proffered testimony that after her fall she heard a nurse's aide tell the head nurse, “Milk got spilled, but we mopped it up.”
Id.The Estate asserts that this court's opinion in Thee v. Manor Pines Convalescent Center, Inc., 235 So. 2d 64 (Fla. 4th DCA 1970), supports admission of this proferred testimony. In Thee, a plaintiff sued a nursing home after she fell on a substance that looked like spilled milk. At trial, plaintiff proffered testimony that after her fall she heard a nurse's aide tell the head nurse, "Milk got spilled, but we mopped it up."
The decided cases clearly establish that the statement about the excess wax was admissible as a party admission under section 90.803(18)(d), Florida Statutes (2000). See Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 529 (Fla. 2d DCA 1992) (statement of apparent but unidentified store employee that "[she] called that boy a few minutes ago to come here and clean this up" admissible against employer to establish actual or constructive notice of dangerous condition); Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64, 65 (Fla. 4th DCA 1970) (statement of unidentified person dressed as nursing home employee that accident happened because "milk got spilled, but we mopped it up" admissible against employer to establish actual or constructive notice of dangerous condition); Shuck v. Texaco Refining Marketing, Inc., 178 Ariz. 295, 872 P.2d 1247 (1994); cf. Ortiz v. Winn Dixie Stores, Inc., 511 So.2d 765, 765 (Fla. 3d DCA 1987) (Schwartz, C.J., dissenting). In another version of the employee's statement, Ms. Troya testified that she had said simply that the floor was "waxy."
In Thee v. Manor Pines Convalescent Center, Ine., 235 So. 2d 64, 65 (Fla. 4th DCA 1970), a plaintiff sought to admit testimony regarding a statement which she had ascribed to a nurse’s aide answering to a head nurse’s inquiry about a shiny spot left after spilled milk had been mopped up before her fall. After the fall, the nurse’s aide helped the plaintiff up and into a wheelchair, Id.
Instead, a party may offer circumstantial evidence that the declarant is an employee or agent. In the case of Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64 (Fla. 4th DCA 1970), the plaintiff proffered testimony that an employee of a nursing home, whom she could not name, made a statement. The Thee plaintiff identified two women by their uniforms as being a head nurse and a nurse's aide at the nursing home.
PER CURIAM. We reverse and remand for a new trial on the authority of Botte v. Pomeroy, 497 So.2d 1275 (Fla. 4th DCA 1986); Poitier v. School Board of Broward County, 475 So.2d 1274 (Fla. 4th DCA 1985); and Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64 (Fla. 4th DCA 1970). ANSTEAD and DELL, JJ., concur.
In my view, this statement precludes summary adjudication of the key issues of causation, because the jury could find that the accident resulted from the offal which was being dragged away; and liability, on the ground that only Winn-Dixie would have undertaken the responsibility of removing the offending object from the floor of its own establishment. See Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64, 65 (Fla. 4th DCA 1970) (statement of unidentified person in nurse's uniform at scene of nursing home fall that, "[m]ilk got spilled, but we mopped it up" creates jury issue as to liability and causation). I would therefore reverse.
The latter case also points out the split of authority nationally and Florida's endorsement of the more liberal view stated above. With regard to appellee's contention that the proffer did not prove the statement was made by an employee of the school board, we would cite to Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64 (Fla. 4th DCA 1970). There, this court held that the witness's identification of the declarant as an employee established that relationship prima facie and placed the burden of going forward and showing no agency upon the employer.
The court's view of the plaintiff's evidence on motion by a defendant for a directed verdict must favor the plaintiff and any conflict in the evidence must be resolved in favor of the plaintiff. Beagle v. Bagwell, Fla.App. 1968, 215 So.2d 24, 26; Thee v. Manor Pines Convalescent Center, Inc., Fla.App. 1970, 235 So.2d 64. In Jones v. Hoffman, Fla.App. 1970, 239 So.2d 76, the court states at page 78 that "(i)n passing on a motion for directed verdict the trial court must accept as true all of the evidence and reasonable inferences therefrom which tend to support the position of the party moved against."
Hugger's statement was an admission by an agent and therefore an exception to the hearsay rule. Myrick v. Lloyd, 1946, 158 Fla. 47, 27 So.2d 615; Lan-Chile Airlines, Inc. v. Rodriguez, Fla.App.3d 1974, 296 So.2d 498; Thee v. Manor Pines Convalescent Center, Fla.App. 4th 1970, 235 So.2d 64; Montgomery Ward Co. v. Rosenquist, Fla.App.2d 1959, 112 So.2d 885; Gordon v. Hotel Seville, Fla.App.3d 1958, 105 So.2d 175. Appellants claim the case sub judice is distinguishable in that Hugger was not acting within the scope of his employment at the time he made the statement.