Jamila Hambrick v. Wells Fargo Bank, N.A. Inc.

24-13279 Opinion of the Court 3 Watson worked for Wells Fargo as a beverage financing re- lationship manager at the time of the accident. Watson resigned in 2022 but never told Wells Fargo about the accident. In her individual capacity, Hambrick sued Wells Fargo for wrongful death. In her capacity as the administrator of Derrick Hambrick's estate, she sued for pain and suffering, funeral and bur- ial costs, and medical expenses. The estate's claim was based on the Georgia dram shop act,¹which imposes liability on those who overserve alcohol to someone noticeably intoxicated and soon to be driving. The district court dismissed Hambrick's individual claim of wrongful death, but the remaining claims proceeded through discovery.

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4 Opinion of the Court 24-13279 During discovery, Watson was deposed twice. In his depo- sitions, Watson testified that he was not working that night nor leaving a work-sponsored event but had rather spent the evening networking. Watson could not remember who he was with or where he was before the accident but said that he could not have been at a work event because he would have used his company credit card, which had no charges from that night. Wells Fargo's corporate representative testified that Wells Fargo did not host an event on that day, or even the next day. Typically, Wells Fargo would keep records of work events, such as contracts with a caterer or vendor, including events that served alcohol. There is no evi- dence of records from the days in question about a work event. Wells Fargo moved for summary judgment, which Ham- brick opposed. Wells Fargo asserted that Watson's statement to police that he was coming from a work function was hearsay and could not be considered, resulting in Hamrick's claim failing as a matter of law. The district court agreed and entered summary judgment in Wells Fargo's favor. Hambrick timely appealed.

II.

"We review the district court's rulings on the admission of evidence for abuse of discretion." Furcron v. Mail Centers Plus, LLC,

843 F.3d 1295, 1304 (11th Cir. 2016). "An abuse of discretion occurs where the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper applica- tion of law to fact." United States v. Jayyousi, 657 F.3d 1085, 1113 (11th Cir. 2011) (internal quotation marks omitted).

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24-13279 Opinion of the Court 5 We review de novo the district court's grant of summary judgment, viewing all facts in the light most favorable to the non- moving party. Morales v. Zenith Ins. Co., 714 F.3d 1220, 1226 (11th Cir. 2013). "The court shall grant summary judgment if the mo- vant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

III.

Hambrick argues that the district court erred in two ways. First, the district court incorrectly found that Watson's statement that he was coming from a work function was inadmissible hear- say. Second, even without Watson's statement, the district court erred in finding that there was not a genuine issue of material fact as to whether Wells Fargo served Watson alcohol before the acci- dent. We will address each argument in turn.

A.

Hambrick argues that Watson's statement should have been admissible because it met at least one of three exceptions to the hearsay rule.

Under the Federal Rules of Evidence, hearsay is an out-of-court statement offered into evidence "to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Gen- erally, hearsay is not admissible at trial. Fed. R. Evid. 802. But there are also several exceptions under which hearsay may be ad- missible. See Fed. R. Evid. 803; Fed. R. Evid. 804. "Hearsay within hearsay is not excluded by the rule against hearsay if each part of

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6 Opinion of the Court 24-13279 the combined statements conforms with an exception to the rule."

Fed. R. Evid. 805.

In considering a motion for summary judgment, a district court generally cannot consider inadmissible hearsay. Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012). But the district court may consider a hearsay statement at the summary judgment stage "if the statement could be reduced to admissible evidence at trial or reduced to admissible form." Id. at 1293-94 (quotation marks omitted). Thus, for the court to consider Watson's state- ment, Hambrick must provide show that it would meet a hearsay exception.

First, Hambrick argues that Watson's statement was part of the police report, a public record, and thus not subject to the hear- say rule under Federal Rule of Evidence 803(8). Hambrick is cor- rect that public records are an exception to the hearsay rule. But

"[f]or the exceptions to apply, the report must contain factual find- ings that are based upon the knowledge or observations of the pre- parer of the report, as opposed to a mere collection of statements from a witness." United Techs. Corp. v. Mazer, 556 F.3d 1260, 1278 (11th Cir. 2009) (internal quotation marks omitted). "It is well es- tablished that entries in a police report which result from the of- ficer's own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not." Id. (quotation marks omitted). Even though Officer Meeks wrote Watson's statement in the report, it was not Officer Meek's own observation, but a statement by Watson, who was

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24-13279 Opinion of the Court 7 under no duty to report. Thus, the public records exception does not apply to Watson's statement.

Second, Hambrick argues that the statement was against Watson's interest and thus is not subject to the hearsay rule under Federal Rule of Evidence 804(b)(3). A statement against the declar- ant's own interest is where

a reasonable person in the declarant's position would have made only if the person believed it to be true be- cause, when made, it was so contrary to the declar- ant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability.

Fed. R. Evid. 804(b)(3)(A). But "Rule 804(b)(3) only applies where the declarant is unavailable" as explained in Rule 804(a). United Techs. Corp., 556 F.3d at 1280. "The burden of proving that the de- clarant is unavailable is on the statement's proponent." Carrizosa

v. Chiquita Brands Int'l, Inc., 47 F.4th 1278, 1309 (11th Cir. 2022). At the district court, Hambrick argued that "Watson's con- fession regarding having just left a work event (where he had clearly been drinking) is a statement against interest, which is an exception to the rule against hearsay pursuant to Federal Rule of Evidence 804(b)(3)." The district court found that Hambrick did not meet his burden that Watson was unavailable, instead finding that there was clear evidence in the record—two depositions—that Watson was available and could be called at trial.

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8 Opinion of the Court 24-13279 Now on appeal to combat the district court's determination, Hambrick asserts that Watson is unavailable under Rule 804(a)(3) because he "testifies to not remembering the subject matter" by switching up his story in saying that he cannot recall exactly where he was coming from but only that it was not a work event. "Rule 804(a)(3) applies only if the declarant is unable to remember the subject matter, i.e., if he has no memory of the events to which his hearsay statements relate." Lamonica v. Safe Hurricane Shutters, Inc.,

711 F.3d 1299, 1317 (11th Cir. 2013) (internal quotation marks omit- ted). Watson recalls his conversation with the officers, and dis- putes that he was at a work function. Watson suggests instead that the officers misheard him because he was slurring his words and mistook the "networking" aspect of his answer for a work function. This shows that Watson has memories of the events and thus is not unavailable under Rule 804(a)(3). Thus, Hambrick has failed to show that Watson is unavailable for Rule 804(b)(3) to apply to Wat- son's statement.

Lastly, Hambrick argues that the district court should have found that Watson's statement met the requirements for the resid- ual exception under Federal Rule of Evidence 807. A hearsay state- ment may still be admitted even though it could not be excluded under the normal rules if: (1) "the statement has equivalent circum- stantial guarantees of trustworthiness;" and (2) "it is more proba- tive on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts." Fed. R. Evid. 807(a). Congress intended for this exception to be used "only in exceptional circumstances" such as "when certain exceptional

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24-13279 Opinion of the Court 9 guarantees of trustworthiness exist and when high degrees of pro- bativeness and necessity are present." United Techs. Corp., 556 F.3d at 1279. To determine whether these circumstantial guarantees ex- ist, courts consider factors such as "the probable motivation of the declarant in making the statement, the circumstances under which the statement was made, the knowledge and qualifications of the declarant, and the existence of corroborating evidence, among oth- ers." Rivers v. United States, 777 F.3d 1306, 1315 (11th Cir. 2015) (citation modified).

The district court found that Watson's statement was not trustworthy nor that it was more probative than other evidence about Watson's whereabouts before the accident. Hambrick as- serts that the statement is trustworthy because it was made close in time to the accident, unlike Watson's statements after litigation commenced. While Hambrick is correct that statements made at the same time as the events can signify trustworthiness, see United States v. Reme, 738 F.2d 1156, 1168 (11th Cir. 1984), the other facts— notably Watson's demeanor after the accident, including slurring of his words and his unsteadiness—cut against this being a trust- worthy statement. As for whether Watson's statement is more probative than the other evidence, we agree with the district court's conclusion that it is not more probative. Watson's single remark about "coming from a work function" is eclipsed by the lack of corroborating evidence that Wells Fargo had an event that

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10 Opinion of the Court 24-13279 night²or that Watson was networking within his role for Wells Fargo the night of the accident. Thus, we are not left with a "defi- nite and firm conviction that the court made a clear error of judg- ment" in not applying the residual exception. Rivers, 777 F.3d at 1312. Thus, the residual exception does not apply.

B.

Hambrick argues that other evidence³demonstrated that material facts were in dispute on the dram shop act claim. Specifi- cally, Hambrick argues that the district court improperly found that Watson was not working for Wells Fargo on the date of the accident. Hambrick tries to twist the district court's conclusion by pointing to evidence that Watson worked for Wells Fargo in Au- gust 2019. There is no dispute that Watson was employed by Wells Fargo during that time. Rather, Hambrick had to show that on the day of the accident, Wells Fargo served a noticeably intoxicated Watson with the knowledge that Watson would be driving soon. No evidence shows that Wells Fargo was hosting an event that night or that Wells Fargo furnished the alcohol, which is required to impose liability under Georgia's dram shop act. See Kappa Sigma

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24-13279 Opinion of the Court 11 Int'l Fraternity v. Tootle, 473 S.E.2d 213, 215 (Ga. Ct. App. 1996). Thus, the district court properly granted summary judgment for Wells Fargo.

IV.

Therefore, the district court did not err in finding that Wat- son's statement that he was coming from a work event on the night of the accident could not be reduced to an admissible statement. Further, the district court correctly found that Hambrick provided no admissible evidence to show that Wells Fargo served Watson alcohol as required under the Georgia dram shop act.

AFFIRMED.

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