A Man Is Only As Good As His Word: How Pavlik v. Walmart Relaxed the Exception Rules to Hearsay

September 18, 2014
Michael McGowan



Jill Pavlik sued Walmart for negligence when she allegedly injured herself after slipping and falling on spilled hair conditioner. Ms. Pavlik’s only evidence was her own testimony that someone, who looked like a store clerk, approached her after the fall and said that the puddle of conditioner should have been cleaned up. The court found that her hearsay evidence should not only be permitted, but it should overcome Walmart’s motion for summary judgment and send the case to trial.

In deciding that the evidence should be permitted, the court applied a new standard for imputing an employee admission to his or her employer. The old standard was that employees must be expressly or impliedly authorized to make statements on behalf of their principals. However, Pavlik held that the admission merely had to be within the employee’s scope of employment. Therefore, since Walmart employees have a duty to keep the store’s premises safe, the alleged comment by the store clerk constituted an admission on behalf of Walmart.

Since a plaintiff can now conceivably invent an admission of negligence from an anonymous employee, it is difficult for an employer to prevent the situation observed in Pavlik. However, there are some preventative measures that can be taken. Employers should ensure that the store’s premises are monitored by security cameras and keep records of employee work schedules so that if a plaintiff alleges that he/she spoke with an unknown employee, all employees can be contacted to verify or refute the claim. The bottom line for employers is to ensure their employees are trained on the do's and don’ts of handling these situations in order to avoid liability.