Proving Notice About a Dangerous Condition: What Is ‘Hearsay’?

Non-lawyers often hear the term “hearsay” bantered about and have a general understanding that hearsay evidence is not admissible in court. (Nota bene: There are some exceptions to that rule.) Today we take a deeper look at the concept of hearsay, as applied by the U.S. District Court for the Eastern District of Pennsylvania in a slip-and-fall case.

Overhearing the Store Cashier

In Nelson v. Dollar Tree, a customer at a Dollar Tree store injured himself after slipping and falling on a liquid believed to be laundry detergent in the store’s cleaning supply aisle. During legal proceedings, the customer testified that following his fall he overheard the store cashier tell Emergency Medical Technicians and police officers that an unknown shopper had informed her of the spilled detergent about 10 minutes before his accident. He could not identify the cashier by name, but described her as being “white, maybe 5’5’’, 5’6” and wearing “the store shirt, green.”

Pennsylvania law provides that businesses have a duty to protect business invitees (i.e., their customers) from known dangers on their property and from dangers that might be discoverable through the exercise of reasonable care. The only evidence that the customer put forth to establish that the spilled laundry detergent was a known danger to Dollar Tree was his own testimony as to what he heard the cashier say.

And that brings us to the concept of hearsay …

Dollar Tree sought to dismiss the customer’s case prior to trial, arguing that the evidence relating to the unknown shopper’s report of the spill to the cashier, and then the cashier’s relaying of the information to first responders, was “double hearsay” that the court could not consider.

Hearsay Defined

In layman’s terms, hearsay evidence is a statement that a party offers in evidence to prove the truth of the matter asserted. It is not admissible in court as evidence unless it falls under specific exceptions to the hearsay rule. Here, citing two reasons, the District Court ruled that the statement by the unknown shopper who reported the spill to the cashier was not barred by the rule against hearsay:

The statement made by the customer of the Dollar Tree to the cashier informing her of detergent on the floor is not barred by the rule against hearsay. This is so, because the statement can be viewed in one of two ways: (1) as a statement to prove notice on the part of … [Dollar Tree],or (2) as a statement constituting a present sense impression, which is an exception to the hearsay rule.

 Additionally, the court ruled that the statement made by the Dollar Tree cashier to the police and EMTs was not barred by the rule against hearsay because it qualified for an exception to the hearsay rule that is allowed for an admission of a party opponent. The court noted that the Federal Rules of Evidence provide:

A statement is not hearsay if offered against an opposing party and “made by the [opposing] party’s agent or employee on a matter within the scope of that relationship and while it existed.”


 The ruling is good news for the customer, who maintains that he sustained serious injuries to his knees, legs, hip, and lower back and underwent a laminectomy for his back injury. Pursuant to the court’s ruling, the customer will be allowed to proceed with his lawsuit. For the rest of us, it exemplifies the complex evidentiary rules that govern personal injury, and all other, litigation. If you have been injured in an accident, we recommend that you consult with a qualified personal injury attorney immediately to ensure that your legal rights are protected.