Commercial Litigation and Arbitration

Email Admissibility — Merely Forwarding Email without Comment ≠ Adoptive Admission — Hearsay within Hearsay

Taylor-Bertling v. Foley, 2013 Ariz. App. Unpub. LEXIS 1276 (Ariz. Ct. App. Nov. 20, 2013):

P1 Appellants Dianne Taylor-Bertling and Richard Bertling (the Taylor-Bertlings) brought suit against appellee Theresa Foley alleging negligence. The jury found in favor of Foley and judgment was entered against the Taylor-Bertlings. ***

On February 20, 2010, while at the home of Theresa Foley, Dianne Taylor-Bertling tripped and fell over a pot placed in a hallway of Foley's home. The Taylor-Bertlings filed suit against Foley, alleging Foley had been negligent in her maintenance of the premises, creating an unreasonably dangerous condition that was not open and obvious, and had failed to warn Dianne Taylor-Bertling of the hazard. After a three-day jury trial, a verdict was returned in favor of Foley. The Taylor-Bertlings filed a motion for new trial, which the court denied. This timely appeal followed. We have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1).***

Admission of Edward Foley's E-Mail

P14   In March 2010, approximately six weeks after the incident, Foley received an e-mail from her father in which he stated, "As I said to you at the time, having something low to the floor in the hallway, that is easy to overlook and therefore easy to stumble over, was really dumb. Please give Dian[n]e my best wishes." Foley forwarded this e-mail to Dianne Taylor-Bertling without comment. The Taylor-Bertlings argue the trial court erred in denying admission of this e-mail, claiming that it was either non-hearsay as an admission against interest or that it was hearsay, but admissible as a past recollection recorded. " We review a trial court's ruling on the admissibility of hearsay evidence for an abuse of discretion." State v. Bronson, 204 Ariz. 321, ¶ 14, 63 P.3d 1058, 1061 (App. 2003).

P15 A statement is non-hearsay if it "is offered against an opposing party and" was either made or manifestly adopted by the party. Ariz. R. Evid. 801(2)(A) and (B). The Taylor-Bertlings concede that this e-mail was not written by Foley, but nonetheless contend that Foley's forwarding of the e-mail to Dianne Taylor-Bertling was an adoption of the statements contained within it.

P16 We find Foley's forwarding of the e-mail was not intended as an adoption of the statements it contained. A party adopts a statement when she "affirmatively agrees . . . or expounds on the statement[] by adding [her] own 'explanations and comments.'" State v. Anderson, 210 Ariz. 327, ¶ 36, 111 P.3d 369, 381 (2005), quoting State v. Daugherty, 173 Ariz. 548, 550, 845 P.2d 474, 476 (App. 1992). Here, where Foley made no statement of agreement and added no further explanation or comment, she did not adopt the statements made by her father, and the e-mail was not admissible as a party admission.

P17 Nor was the e-mail admissible as the recorded recollection of Foley's father, Edward Foley. Assuming arguendo that the e-mail itself is admissible as a record of Edward Foley's memory of the event, the statement concerning the placement of the pot was not originally made in the e-mail, making it hearsay within hearsay. When a document contains  two levels of hearsay, each level of hearsay must be separately admissible to allow admission of the whole. See Ariz. R. Evid. 805; Diaz v. Magma Copper Co., 190 Ariz. 544, 552, 950 P.2d 1165, 1173 (App. 1997). The Taylor-Bertlings have not asserted any grounds for finding the original statement was not hearsay. We therefore conclude the e-mail was not admissible as a recorded recollection, and the trial court did not abuse its discretion in excluding it as inadmissible hearsay.


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