I am an Atlanta, Georgia personal injury blogger, and I am on my third and final post on the law of res gestae in Georgia. See O.C.G.A. § 24-3-3. The law of res gestae is ancient here in Georgia. I am a pretty experienced Atlanta, Georgia personal injury lawyer, and certainly it has been around for the entire 25 years I have been practicing law, and for decades before that. When our new evidence code takes effect, it will be a thing of the past. The traditional law is being replaced by a rule that is very similar to the one the federal courts use.
For those of you who are just starting with the blog, res gestae statements are statements that are hearsay, because the person who originally made the statement is not able to testify, generally because they have died or cannot be located. In the context of a car accident lawsuit, for example, a police officer might be permitted to testify about what a bystander said about who caused the wreck. The police officer's testimony is hearsay, since the bystander is not in the courtroom to be cross-examined. Hearsay, of course, is not normally admissible. However, the courts have made an exception for statements that "are contemporaneous, voluntary and made at a time which indicates the lack of deliberation and deception." Gaines v. State, 232 Ga. 727, 730, 208 S.E.2d 798, 801 (Ga. 1974). The idea behind the rule is that people who volunteer statements in the heat of the moment are not very likely to be making them up. The statements are considered to have the "indicia of truthfulness," and are admitted into evidence at trial, not just in Georgia personal injury lawsuits, but in all types of lawsuits.
Courts even have admitted res gestae statements when the statements supposedly were made by the defendant's own (unidentified) employees, and, if believed, would amount to a damaging admission by the defendant. For example, in K-Mart Corp. v. Morris, 251 Ga. App. 753, 555 S.E.2d 106 (Ga. Ct. App. 2001), the Plaintiff had fallen at a K-Mart. Before she left for the hospital, her husband asked an employee what had happened. The employee responded: "Accidents will happen. Someone has pushed the door the wrong way going out and until it's reset it will continue to operate that way and the reset was never made prior to her entering the door." Id., 251 Ga. App. at 754, 555 S.E.2d at 108. The plaintiffs were unable to identify the employee, although the husband testified to his gender, race, height, and weight. Id. K-Mart argued that: "statements by unidentified employees in premises liability cases never fall within the res gestae." Id. The Court rejected the argument, and admitted the testimony as part of the res gestae. Id.
Similarly, in Tenney v. Mobil Oil Corp., 133 Ga. App. 631, 211 S.E.2d 901 (Ga. Ct. App. 1974), "an employee, immediately after the occurrence, stated that there had been trouble with the spring holding the door in place." Id., 133 Ga. App. at 632, 211 S.E.2d at 901. The Court found that the statement "was admissible as a part of the res gestae. It did not absolutely bind the defendant, but, being admissible, it would sustain an inference that service station attendants knew something was wrong with the door when left in a 'partly down' position." Id.
When statements made near the time of the incident appear reliable, courts are even more likely to admit them. In the Morris case, the court noted that the employee had been specific about how the door operated and why it swung outward when it should not have, and that the defendant not only "never disputed this fact," but in fact had provided similar facts about how the door operated. Kmart Corp. v. Morris, 251 Ga. App. at 755, 555 S.E.2d at 108.
