Georgia Res Gestae, Part 3: Statements by Employees

I am an Atlanta, Georgia personal injury blogger, and I am on my third
and final post on the law of res gestae in Georgia.
See O.C.G.A. § 24-3-3. The law of res gestae is ancient here in Georgia.
I am a prettyexperienced Atlanta, Georgia personal injury lawyer, and certainly it has been around for the entire 25 years I have been
practicing law, and for decades before that. When our new evidence code
takes effect, it will be a thing of the past. The traditional law is being
replaced by a rule that is very similar to the one the federal courts use.

For those of you who are just starting with the blog, res gestae statements
are statements that are hearsay, because the person who originally made
the statement is not able to testify, generally because they have died
or cannot be located. In the context of a car accident lawsuit, for example,
a police officer might be permitted to testify about what a bystander
said about who caused the wreck. The police officer’s testimony
is hearsay, since the bystander is not in the courtroom to be cross-examined.
Hearsay, of course, is not normally admissible. However, the courts have
made an exception for statements that “are contemporaneous, voluntary
and made at a time which indicates the lack of deliberation and deception.”
Gaines v. State, 232 Ga. 727, 730, 208 S.E.2d 798, 801 (Ga. 1974). The idea behind the
rule is that people who volunteer statements in the heat of the moment
are not very likely to be making them up. The statements are considered
to have the “indicia of truthfulness,” and are admitted into
evidence at trial, not just in Georgia personal injury lawsuits, but in
all types of lawsuits.

Courts even have admitted res gestae statements when the statements supposedly
were made by the defendant’s own (unidentified) employees, and,
if believed, would amount to a damaging admission by the defendant. For
example, in
K-Mart Corp. v. Morris, 251 Ga. App. 753, 555 S.E.2d 106 (Ga. Ct. App. 2001), the Plaintiff had
fallen at a K-Mart. Before she left for the hospital, her husband asked
an employee what had happened. The employee responded: “Accidents
will happen. Someone has pushed the door the wrong way going out and until
it’s reset it will continue to operate that way and the reset was
never made prior to her entering the door.” Id., 251 Ga. App. at
754, 555 S.E.2d at 108. The plaintiffs were unable to identify the employee,
although the husband testified to his gender, race, height, and weight.
Id. K-Mart argued that: “statements by unidentified employees in
premises liability cases never fall within the res gestae.” Id.
The Court rejected the argument, and admitted the testimony as part of
the res gestae. Id.

Similarly, in
Tenney v. Mobil Oil Corp., 133 Ga. App. 631, 211 S.E.2d 901 (Ga. Ct. App. 1974), “an employee,
immediately after the occurrence, stated that there had been trouble with
the spring holding the door in place.” Id., 133 Ga. App. at 632,
211 S.E.2d at 901. The Court found that the statement “was admissible
as a part of the res gestae. It did not absolutely bind the defendant,
but, being admissible, it would sustain an inference that service station
attendants knew something was wrong with the door when left in a ‘partly
down’ position.” Id.

When statements made near the time of the incident appear reliable, courts
are even more likely to admit them. In the Morris case, the court noted
that the employee had been specific about how the door operated and why
it swung outward when it should not have, and that the defendant not only
“never disputed this fact,” but in fact had provided similar
facts about how the door operated. Kmart Corp. v. Morris, 251 Ga. App.
at 755, 555 S.E.2d at 108.