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39. Is the homeowner's testimony regarding the plumber's response admissible?
A homeowner sued a plumber for damages resulting from the plumber's allegedly faulty installation of water pipes in her basement, which caused flooding. At trial, the homeowner is prepared to testify that when she first detected the flooding, she turned off the water and called the plumber at his emergency number for help and that the plumber responded, «I'll come by tomorrow and redo the installation for free.»
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A statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this FRE, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible. Fed. R. Evid. 801(d)(2).
Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim. Such evidence is also inadmissible to impeach through a prior inconsistent statement or a contradiction. Fed. R. Evid. 408.
Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. Fed. R. Evid. 407.
D is correct. The homeowner's testimony reporting the plumber's statement, «I'll come by tomorrow and redo the installation for free» is a party admission, admissible as a hearsay exemption under FRE 801(d)(2)(A). It is a statement by the opposing party (the plumber) being offered against that party, and is therefore admissible.
A is incorrect. The plumber's statement does not constitute an offer in compromise because under FRE 408, statements concerning a claim that is disputed as to validity or amount are protected. However, in this case there was no pending dispute at the time the statement was made. The homeowner was simply calling for help and had not complained about the plumber's work or in any other way indicated that there was a dispute between the parties. Accordingly, the statement does not qualify as an offer in compromise.
B is incorrect. As explained above, the testimony is not considered hearsay. It is admissible because it is exempted as non-hearsay under FRE 801(d)(2).
C is incorrect. This answer reaches the correct answer with the wrong reasoning. FRE 407 excludes evidence of measures taken that, had they been taken prior to the event that caused the injury, would have made the injury or harm less likely to occur. Here, no «measure» was taken at all. The plaintiff wants to introduce a statement, not any action that would have made the injury less likely to occur.