"[A] vicarious admission describes an exception to the hearsay rule; namely, a witness may testify to the out-of-court statement of an agent of a party." Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 339 (2003), quoting from Turners Falls Ltd. Partnership v. Board of Assessors of Montague, 54 Mass. App. Ct. 732, 736 (2002). In conducting his hearing on the admissibility of the statements, the trial judge properly followed the procedure and standards established for making determinations as to the admissibility of vicarious admissions.
Under the traditional approach to slip and fall premises liability, the plaintiff "must identify the hazardous condition that caused [her] to slip, prove that it was present prior to [her] injury, and demonstrate that the defendant either caused the substance to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it." Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 337 (2003). The Supreme Judicial Court first acknowledged a dissatisfaction with the traditional approach to slip and fall liability in Gilhooley v. Star Mkt. Co., 400 Mass. 205, 208 (1987), by observing that
"The plaintiff must identify the hazardous condition that caused [her] to slip, [and] prove that it was present prior to [her] injury . . . ." Thorell v. ADAP, Inc., 789 N.E.2d 1086, 1089 (Mass. App. Ct. 2003). Notwithstanding the government's contention that Plaintiff relies solely on a generalized description of a wet and slippery floor as proof of the presence of the hazardous condition (Dkt. No. 43 at 3), she has produced sufficient evidence that there was water on the floor of the Forest Park Station's lobby when she slipped and fell shortly before 3:00 P.M.
Where the "proper disposition of the [summary judgment] motion depends on the admissibility of evidence, and admissibility depends, in turn, upon the resolution of questions of fact, the judge's decision should reflect that he or she has confronted and resolved those questions." Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 340, 789 N.E.2d 1086 (2003). Here, the judge should have, but did not, resolve the questions about the admissibility of these documents.
In a slip and fall claim, in order to prove that the defendants breached their duty, "[t]he plaintiff must identify the hazardous condition that caused [her] to slip, prove that it was present prior to [her] injury, and demonstrate that the defendant[s] either caused the [condition] to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it." Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 337 (2003).Here, while there was evidence that a hazardous condition existed at the time of the plaintiff's injury, there was no evidence that the defendants had actual or constructive notice of the hazardous condition before the accident.
We likewise ignore these hearsay statements. See Madsen v. Erwin, 395 Mass. 715, 721, 481 N.E.2d 1160 (1985); Thorell v. ADAP, Inc., 58 Mass.App.Ct. 334, 338, 789 N.E.2d 1086 (2003). The rift between Brelin–Penney and Mervis came to a head on May 17, 2007.
"Habeas corpus is not the remedy for litigating speedy trial issues. Jackson v. Wilson, 100 Ohio St.3d 315, 2003-Ohio-6112, 789 N.E.2d 1086; and State ex rel. Brantley v. Ghee (1987), 80 Ohio St.3d 287, 685 N.E.2d 1243." Canon v. Shaffer, Cuyahoga App. No. 94588, 2010-Ohio-538, ¶ 5.
Habeas corpus is not the remedy for litigating speedy trial issues. Jackson v. Wilson, 100 Ohio St.3d 315, 2003-Ohio-6112, 789 N.E.2d 1086; and State ex rel. Brantley v. Ghee (1987), 80 Ohio St.3d 287, 685 N.E.2d 1243. {¶ 6} Accordingly, this court sua sponte dismisses Cannon's petition for a writ of habeas corpus.
We view the summary judgment record, as we are required to do, in the light most favorable to the plaintiff. See Alioto v. Marnell, 402 Mass. 36, 37 (1988); Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 335 (2003). In addition to the facts outlined above, the record reveals the following.
To recover, "[t]he plaintiff must identify the hazardous condition that caused [her] to slip, prove that it was present prior to [her] injury, and demonstrate that the defendant either caused the substance to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it." Thorell v. ADAP, Inc., 58 Mass. App.Ct. 334, 337 (2003). In the present case, there is no evidence that NAI was aware of the puddle of water or that the water had remained on the restroom floor long enough so that in the exercise of reasonable care, NAI should have discovered and remedied that condition.