                                                                         FILED
                                                                       MAY 24, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION THREE

CANDY AND STEVE BREEDEN, wife                 )
and husband,                                  )        No. 32813-9-111
                                              )
                       Appellants,            )
                                              )
          V.                                  )
                                              )        UNPUBLISHED OPINION
MEAD HIGH SCHOOL DISTRICT #354                )
and MEAD HIGH SCHOOL,                         )
                                              )
                       Respondents.           )

          SIDDOWAY, J. -Trial of Candy and Steve Breeden's personal injury action

arising out of Ms. Breeden's slip and fall at Mead High School resulted in a defense

verdict. The Breedens challenge the trial court's exclusion of evidence of statements

made by an unidentified witness to the fall. We find no error or abuse of discretion and

affirm.

                      FACTS AND PROCEDURAL BACKGROUND

          In the spring of 2009, Candy Breeden's son transferred to Mead High School and

on May 14 she accompanied him to the school to check in. While there, Ms. Breeden

walked down a hall alongside the school's cafeteria, on her way to speak to the parking

attendant about where her son should park his car. Passing by the cafeteria, she slipped
No. 32813-9-111
Breeden v. Mead H.S. District #345


and fell. According to Ms. Breeden, there was water on a large area of the floor-too

large to have been caused by a spill-and her clothes were left soaking wet. From her

own experience with domestic chores, she concluded the floor had just been mopped. No

"Wet Floor" signs were present nor had the wet area been taped off.

       Immediately after the fall, an unidentified woman whom Ms. Breeden described as

between 15 and 25 years old ran over and helped her up. Ms. Breeden claims the woman

said, "They just mopped the floor" and, "[T]his happens all the time," while helping Ms.

Breeden to her feet. Clerk's Papers (CP) at 26. After the fall, Ms. Breeden was in pain

and struggling to hold back tears but she continued to the parking lot, where the attendant

encouraged her to file an incident report with the school administrative office before

leaving. Ms. Breeden did, mentioning in her report that a student had witnessed the

event. She described the accident as follows: "walking down hall[,] floor was just

mopped. I slipped and fell on back." CP at 34.

       Before trial, the school district moved the court to exclude any mention of the

statements alleged to have been made by the witness, whose identity remained unknown.

The Breedens responded that while hearsay, the statements were admissible under the

present sense impression and excited utterance exceptions to the hearsay rule.

      The trial court sustained the school district's objection to evidence of the

statements, explaining that while such statements can come in "even though we have no

idea who a declarant might be ... I have to have more of a foundation than I think I have

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Breeden v. Mead HS. District #345


here." Report of Proceedings (RP) at 125-26. Addressing the hearsay exception for

present sense impressions, the court observed, "I don't know [whether] the statement

about the mopping was made ... one minute after the supposed mopping happened or 30

minutes ago." Id. at 126. Addressing the hearsay exception for excited utterances, it

stated that while Ms. Breeden was "certainly under the stress of a very difficult event for

her ... I have no foundation to know whether the person that said this actually saw her

fall ... or whether they were, like I said, looking in another direction." Id. at 126-27.

       At the conclusion of trial, the jury returned a defense verdict. Ms. Breeden

appeals.

                                        ANALYSIS

       "' Hearsay' is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER

801 ( c). Hearsay is inadmissible unless it falls under an exception or exclusion to the

hearsay rule. ER 802. The Breedens contend that the statements of the unidentified

witness were admissible under ER 803(a) as a present sense impression or an excited

utterance. A present sense impression is "[a] statement describing or explaining an event

or condition made while the declarant was perceiving the event or condition, or

immediately thereafter." ER 803(a)(l). An excited utterance is "[a] statement relating to

a startling event or condition made while the declarant was under the stress or excitement

caused by the event or condition." ER 803(a)(2).

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Breeden v. Mead HS. District #345


       The Breedens contend the trial court committed legal error or abused its discretion

in sustaining the school district's objection to the evidence. Generally, we review the

trial court's admission of evidence for abuse of discretion, but whether a rule of evidence

applies in a given factual situation is a question of law that we review de novo. State v.

Chambers, 134 Wn. App. 853, 858, 142 P.3d 668 (2006).

       We find no legal error by the trial court. Even where a statement is admissible as

an exception to the hearsay rule, it may be inadmissible for other reasons. 5B KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE § 802.3 (5th ed. 2007).

A declarant's lack of personal knowledge is one such reason. Hearsay declarants must

have personal knowledge of what they assert in order for their declarations to be

admissible. See FED. R. EVID. 803, advisory committee's note, 56 F.R.D. 183,303

( 1973) ("In a hearsay situation, the declarant is, of course, a witness, and neither this Rule

nor Rule 804 dispenses with the [Rule 602] requirement of firsthand knowledge.").

       "A witness may not testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the matter. Evidence to

prove personal knowledge may, but need not, consist of the witness' own testimony."

ER 602. The trial court properly considered whether the Breedens presented sufficient

evidence of the unidentified witness's personal knowledge. It recognized that the

witness's statements could themselves be considered as possible evidence of personal

knowledge. Because there was no legal error, we consider whether the trial court abused

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Breeden v. Mead HS. District #345


its discretion in determining that the Breedens did not establish a foundation for the

statements.

       Ms. Breeden argues that'" [t]estimony should not be excluded for lack of personal

knowledge unless no reasonable juror could believe that the witness had the ability and

opportunity to perceive the event that he testifies about."' Br. of Appellant at 16

(quoting United States v. Hickey, 917 F.2d 901,904 (6th Cir. 1990)). But Hickey

involved the clearly distinguishable context of a witness who was identified, on the stand,

and claimed personal knowledge-at issue was whether his drug addiction and

inconsistency justified excluding his testimony despite his claim of personal knowledge.

The case does not hold that where, as here, an unidentified hearsay declarant's statements

are at issue, the court must infer the declarant' s personal knowledge unless no reasonable

juror could infer it.

       On facts substantially similar to those at issue here, the federal district court in

Gainer v. Wal-Mart Stores East, L.P., excluded witness statements. 933 F. Supp. 2d 920

(E.D. Mich. 2013). Diane Gainer, who slipped and fell while entering a Wal-Mart store,

testified that while several customers were helping her up they stated "' [other] people

had came in and almost went down because they didn't have mats or cones out there"'

and "' they [Defendant] were just mopping the [mother f-ing] floor.'" Id. at 923

(alterations in original). The court found the alleged statements to be inadmissible




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hearsay because Ms. Gainer could not establish that the declarants had personal

knowledge of the substance of their statements. Id. at 932.

       Also, only Ms. Gainer and her daughter could testify to the hearsay. Id. at 931-32.

The court stated: "Courts should be particularly vigilant in policing the personal

knowledge requirement where the only witness able to testify to a statement made by an

unidentified declarant is a party in interest." Id. at 931. In fact, even where the declarant

is identifiable, courts "hesitate to allow the declarant's statement itself to provide the sole

foundation for its own admissibility without some reliable corroborative evidence." Id.

The court also noted that because one of the statements at issue was not about the

exciting event (the fall), but about a "temporally separate and independent event-the

alleged mopping," there was "a heightened concern for reliability and trustworthiness, as

the event of mopping the floor, by itself, [was] not particularly noteworthy." Id. at 932.

       Like the statements in Gainer, the alleged statement by the unidentified witness to

Ms. Breeden's fall that "they just mopped," does not demonstrate the witness's personal

knowledge-she did not say "I saw them mopping." Ms. Breeden argues the fact that the

witness ran to her aid immediately after her fall indicates the witness saw her fall, but the

statements Ms. Breeden seeks to admit are not about the fall, but rather about the

mopping and falls that occurred in the past. The inferable fact that the witness saw Ms.

Breeden fall does not tell us anything about the witness's personal knowledge of the

substance of her statements.

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Breeden v. Mead HS. District #345


       Cases on which Ms. Breeden relies are distinguishable. In Miller v. Crown

Amusements, Inc., the court found testimony from an unidentified 911 caller about the

circumstances of an accident admissible as a present sense impression. 821 F. Supp. 703,

704 (S.D. Ga. 1993). In concluding that the personal knowledge of the caller had been

established, the court found the following important: that the caller stated "' we noticed'"

the accident, indicating actual perception; that the call was placed two minutes after

another 911 call made by someone at the scene of the accident, the amount of time it

would take for a driver to get from the accident to the next available public telephone;

that the caller's statement about where the accident occurred was consistent with her

having driven that route and witnessed the accident; and, because the 911 call was

recorded, its content was not in doubt. Id. at 705-06 (emphasis added).

       In Lindsay v. Mazzio 's Corp., the plaintiff slipped and fell at a restaurant. 136

S.W.3d 915,918 (Mo. Ct. App. 2004). At trial, the court admitted testimony that an

unidentified diner ("the observer") had stated, "' That floor is wet there,' " immediately

after the plaintiff slipped. Id. There was evidence of the observer's vantage point: she

was '" sitting at a table right beside the spot where [the plaintiff] fell."' Id. at 919. And

the statement was not about earlier events or prior accidents, but was her present sense

impression "describ[ing] what the observer was seeing at the time." Id. at 923.

       In H.E.B. Food Stores v. Slaughter, the plaintiff slipped and fell on water and

loose grapes in a grocery store. 484 S.W.2d 794, 795 (Tex. App. 1972). The court

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Breeden v. Mead HS. District #345


admitted the plaintiffs testimony that an unidentified store employee spontaneously said,

"' She fell on those grapes."' Id. at 797. The court inferred the employee's personal

knowledge that loose grapes were on the floor from evidence that the plaintiff had seen

him nearby, unloading produce, and it was the employee's immediate explanation of why

the plaintiff fell. Id.

        In Sanitary Grocery Co. v. Snead, the plaintiff slipped and fell on spinach and

loose grapes on the floor in a grocery store. 67 App. D.C. 129, 90 F.2d 374, 375 (D.C.

Cir. 193 7). The court admitted the testimony of a witness who saw the plaintiffs fall and

testified that "' one of the boys, the clerks, went and picked her up ... and said, "That has

been on the floor for a couple of hours,""' and that "'he ha[d] been so busy that he ha[d]

not had a chance to clean it up."' Id. No challenge was made to the clerk's personal

knowledge, which could be inferred from the evidence that he was on duty and admitted

knowing of the produce and failing to clean it up.

       Finally, in David by Berkeley v. Pueblo Supermarket ofSt. Thomas, the plaintiff,

who was eight months pregnant, slipped, while grocery shopping, on cottage cheese,

falling directly on her stomach. 740 F.2d 230, 232 (3d Cir. 1984). The court admitted

hearsay testimony that a nearby shopper (in this case identified, but not called as a

witness) said, after the fall, "' I told them to clean it up about two hours ago-an hour and




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Breeden v. Mead HS. District #345


a half ago.'" Id. at 234. Here again, no challenge was made to personal knowledge,

which was implicit ("l told them to clean it up .... "). 1

       Here, the unidentified witness did not disclose a basis for her knowledge that "they

just mopped"; there is no evidence she was a school custodial employee engaged in

cleaning the immediate vicinity, from which personal knowledge might be inferred; there

was no indication of where she was when Ms. Breeden fell other than that she ran over;

and the only evidence of her statement comes from Ms. Breeden, who has an interest in

the content of the statement.

       Any present sense impression on the part of the unidentified witness would be of

the wet floor or the fall, since there was no evidence that the witness perceived the earlier

mopping or prior accidents. Finally, the statement, "This happens all the time," tends to

belie the argument that Ms. Breeden's fall was, from the perspective of the witness, a

"startling event ... made ... under stress of excitement."




       1
       As pointed out by the defense, the appellate court in David by Berkeley
concluded the trial court would not have abused its discretion by excluding the testimony:
              Even though he reached the very outer bounds of his permissible
       discretion and even though as trial judges we may have ruled differently,
       we hold that the trial judge did not commit reversible error in admitting [the
       shopper's] statement under the excited utterance exception.

Id. at 235.



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No. 32813-9-III
Breeden v. Mead HS. District #345


       For all of these reasons, the Breedens fail to demonstrate that the trial court abused

its discretion in sustaining the hearsay objection.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                      · d]tllow ·
                                                               ~
                                                      iddoway, J.
                                                                                  J-
WE CONCUR:




                                                   Lawrence-Berrey, J.




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