NOT DESIGNATED FOR PUBLICATION

No. 122,312

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ESTATE OF EDNA PHILLIPS, by and through its duly 

appointed executor STEVEN PHILLIPS, and STEVEN PHILLIPS,

JOHN PHILLIPS, and JUDY FUGIT, Heirs at Law of EDNA PHILLIPS,

Appellants,

v.

ANDOVER SENIOR CARE, LLC, d/b/a VICTORIA FALLS 

and d/b/a VICTORIA FALLS ASSISTED LIVING,

Appellee.

MEMORANDUM OPINION

Appeal from Butler District Court; MICHAEL E. WARD, judge. Opinion filed November 5, 2021. 

Reversed and remanded with directions.

Melinda G. Young, of Melinda Young Law, LLC, of Hutchinson, for appellants.

Matthew A. Spahn, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.

Before POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired, 

assigned.

LEBEN, J.: Suffering from dementia, Edna Phillips moved to a nursing home where 

facility staff could help to keep her safe. But she walked out of the facility, apparently

unnoticed, fell on an uneven sidewalk, and broke her hip. She died five days later.

Mrs. Phillips' estate sued the nursing home, owned by Andover Senior Care, LLC, 

for the failure to keep Mrs. Phillips from heading outside on her own. But a key piece of 
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evidence was excluded at trial. That evidence was her son's testimony that the on-call 

nurse had told him by phone the day Edna fell that she had gotten away unsupervised 

because both staffers who could have prevented it left for lunch at the same time. The 

district court excluded that evidence under the rules precluding hearsay testimony.

But the hearsay rules have lots of exceptions, and one of them applied here: the 

testimony should have been allowed as an admission of a party opponent made by the 

nursing home's on-call nurse. Because this evidence was central to the plaintiff's case and 

not presented to the jury, we set aside the judgment entered for the defendant and remand 

the case for a new trial.

The parties presented extensive evidence in a seven-day jury trial. We will review 

only the evidence central to the legal issues raised on appeal.

Mrs. Phillips' estate, the plaintiff in this lawsuit, wanted to present her son's 

testimony that a nurse had called him from the nursing home the day his mother fell. Her 

son, Steven, would have testified that when he asked the nurse "how [his mother] got 

out," he "was informed that out of the three staff on duty, two had [gone] to lunch and left 

the doors unattended."

The district court correctly held that this was testimony about a hearsay statement. 

Hearsay is a statement, presented to show the truth of what was said, made by someone 

other than the witness who is testifying. See K.S.A. 2020 Supp. 60-460. But lots of 

hearsay statements are admissible because there are many specific provisions allowing 

them into evidence.

Andover Senior Care emphasized at trial and notes again on appeal that its records 

didn't show that this statement was made. The district court relied on that as one basis for 

its initial rejection of the testimony, sustaining the hearsay objection and stating that "if 
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this witness is about to disclose information that is not already contained in the records 

that have been admitted, then I will sustain the objection."

Before concluding its presentation, Mrs. Phillips' estate renewed the attempt to 

admit this statement. In support, it argued several specific hearsay exceptions, including 

one found in K.S.A. 60-460(g). That provision allows hearsay statements to be used 

"against a party" in the case if the statement was made by a person who was "acting in [a] 

representative capacity" for the party in making the statement. K.S.A. 2020 Supp. 60-

460(g).

Steven testified that the nurse who called him said that "she was the nurse on call 

at that time." He believed she was Jessica Todd, a registered nurse who worked for 

Andover Senior Care then, but Steven also admitted that the nurse didn't give her name 

during that call.

The district court denied admission under K.S.A. 60-460(g) largely because there 

wasn't clear identification of the nurse who called Steven: "[I]n order for it to come in 

under [K.S.A. 60-460](g) . . ., the [person making the statement] should really be 

identified . . . as a representative of the party, an employee of the party. And we haven't 

firmed up and fully identified the identity of the declarant." Andover Senior Care 

continues to argue on appeal that unless the nurse who called Steven is identified, the 

statement can't come into evidence as an admission of a party.

But many courts have held otherwise, and we think their rulings make sense. 

What the rule requires is that the statement have been made by someone "in [a]

representative capacity" for the party. K.S.A. 2020 Supp. 60-460(g). A similar federal 

rule allows admission of a statement "made by the party's agent or employee on a matter 

within the scope of that relationship and while it existed." Fed. R. Evid. 801(d)(2)(D). We 
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agree with Professors Hayden and Mulligan that these provisions are "similar in 

interpretation." 3 Hayden & Mulligan, Kansas Law and Practice: Lawyer's Guide to 

Kansas Evidence § 7:9 (5th ed. 2021). A statement made by a party's agent or employee 

on a matter within the scope of the relationship, the language of the federal rule, is made 

by a person in a representative capacity, the language of our rule. 

In the federal courts, "[i]t is not necessary that the declarant be identified by name, 

so long as the evidence is otherwise sufficient to show that the declarant bore the 

necessary relationship to the party and that the subject matter of the statement concerned 

the declarant's job." Goode & Wellborn, Courtroom Evidence Handbook 259 (2021-2022 

student ed.); see Medical Center at Elizabeth Place, LLC v. Atrium Health System, 817 

F.3d 934, 944-45 (6th Cir. 2016); Lexington Ins. Co. v. Western Pennsylvania Hosp., 423 

F.3d 318, 330 n.7 (3d Cir. 2005); Davis v. Mobil Oil Exploration & Producing Southeast, 

Inc., 864 F.2d 1171, 1173-74 (5th Cir. 1989). And the plaintiff cites a very similar case to 

ours from the Florida state courts, Benjamin v. Tandem Healthcare, Inc., 93 So. 3d 1076 

(Fla. App. 2012). In that case, the court held that testimony about what a nursing-home 

kitchen worker heard other unidentified employees say about someone choking on food 

was admissible even though the employees weren't identified. 93 So. 3d at 1085-87.

One unpublished Kansas appellate case, State v. Mollenelli, No. 94,550, 2006 WL 

3773445, at *3-4 (Kan. App. 2006) (unpublished opinion), does have some language 

suggesting that the speaker must be identified for the statement to be admitted. But we 

don't find Mollenelli persuasive on this point. First, the discussion of K.S.A. 60-460(g) in 

Mollenelli was completely unnecessary to the court's ruling. The court first said that the 

issue under K.S.A. 60-460(g) was "not properly before us for review." 2006 WL 

3773445, at *3. Only after recognizing that the issue wasn't properly before it did our 

court speak about it. Second, the statement at issue in Mollenelli was that of an unnamed 

police officer, and statements by police officers are treated differently under this specific 

hearsay rule. Mollenelli's father claimed that an officer called him to have him pick up 
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his son's car after a DUI arrest and that the officer said Mollenelli had passed his sobriety 

test. Although it wasn't discussed in Mollenelli, statements by police officers, while 

admissible under a variety of other hearsay exceptions, wouldn't be similarly admissible 

under K.S.A. 60-460(g). When a statement is admitted under K.S.A. 60-460(g) or its 

federal counterpart, it's admitted as the admission of a party opponent. But courts 

generally hold that since the party opponent in a criminal case is the government, not the 

police department, statements by police officers aren't admissible as ones by a party 

opponent. E.g., Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir. 1993); United States v. 

Booker, 375 Fed. Appx. 225, 230 (3d Cir. 2010) (unpublished opinion). We do not find 

Mollenelli persuasive on the points decided in this appeal.

In our case, the plaintiff provided sufficient evidence that the statement was made 

in a representative capacity for Andover Senior Care. Steven would have testified that the 

nurse identified herself as the "on-call nurse" for the facility. We also know that nurse 

Todd, an employee of Andover Senior Care, did an investigation about what had 

happened, and she admits that she called Steven that day. So a reasonable juror could 

easily conclude that Todd made the call. Even if she didn't, though, it's hard to see how a 

person acting as the "on-call nurse" for the facility would not have been acting in a 

representative capacity, and that's all that K.S.A. 60-460(g) requires. 

Andover Senior Care has argued that one nurse who wasn't its employee 

(apparently a hospital hospice nurse) may have had contact with Steven that day. But at 

least according to Steven's testimony, the person who called him said she was the on-call 

nurse at the nursing home. Steven testified that he thought Todd had called him, even 

though she didn't identify herself. And Todd didn't rule out that she'd had that 

conversation: when asked, "[D]o you recall in your conversation with Mr. Phillips telling 

him whether you had determined the reason that Ms. Phillips got out of the [nursing 

home]?" she answered, "No, I do not recall." So a jury could conclude that it was Todd 

who made the call. Or, if it was not Todd, the jury could conclude that it was an 
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authorized "on-call nurse" on the line. Either way, the call would have been made in a 

representative capacity by someone acting on behalf of Andover Senior Care that day.

We note that no separate foundation is required under K.S.A. 60-460(g) showing 

that the speaker had first-hand knowledge to support the statement. The statute doesn't 

require it—it requires only that the person have been acting in a representative capacity 

when making the statement. See 3 Hayden & Mulligan, Lawyer's Guide to Kansas 

Evidence § 7:9 ("There is no foundational requirement to prove personal knowledge of

the fact admitted. The fact it was made is sufficient."); Lexington Ins. Co., 423 F.3d at 

330 n.7 (noting that personal knowledge is not required for a statement's admission under 

the parallel federal rule, Fed. R. Evid. 801[d][2][D]); Mahlandt v. Wild Canid Survival & 

Research Center, Inc., 588 F.2d 626, 630-31 (8th Cir. 1978) (holding that the personal 

knowledge requirement does not apply under the parallel federal rule).

We recognize that in some cases whether to admit a hearsay statement is a 

discretionary call for the trial court. See State v. Reed, 302 Kan. 390, 401, 352 P.3d 1043 

(2015). But that discretion comes into play only when the trial court has the legal rules 

correctly in mind. State v. Miller, 308 Kan. 1119, 1166, 427 P.3d 907 (2018). Here, the 

trial court required that the person making the statement be identified before it could be 

admitted. Although it's not completely clear, the trial court appears also to have required 

that the statement have been made by an employee, not some other agent. Both points 

would be wrong (though we also recognize that it's probably impossible to get all points 

of evidence law right as the objections fly past at trial). Nothing in K.S.A. 60-460(g) 

requires that the speaker be identified beyond a showing that the person acting in a 

representative capacity at the time, which would be met by any statement of the on-call 

nurse. We therefore find error in the trial court's exclusion of Steven's testimony on this 

point.
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Andover Senior Care argues that the error is harmless, so a new trial isn't needed. 

As the party benefitting from the error, Andover Senior Care must show that there is no 

reasonable probability that the error affected the trial's outcome given the entire record. 

Rockhill Pain Specialists v. Hancock, 55 Kan. App. 2d 161, 175-76, 412 P.3d 1008 

(2017); see K.S.A. 2020 Supp. 60-261. 

Although Andover Senior Care argues that this hearsay statement was a small part 

of a seven-day trial, how Mrs. Phillips managed to get outside and whether Andover 

Senior Care's employees had been negligent were central parts of the plaintiff's case. The 

excluded testimony strongly suggested that Mrs. Phillips got out only because the two 

employees who could have prevented it both left for lunch at the same time. Andover 

Senior Care has provided no rationale in its appellate brief that would suggest it was 

proper for these two employees to leave for lunch at the same time. We are not convinced 

that the error here was harmless.

Mrs. Phillips' estate makes two more claims on appeal. It claims a written 

statement from Jeannie Lopez, a nursing aide, should have been admitted. But the estate 

didn't ask to have that statement admitted at trial. The estate also complains that it wasn't 

allowed to cross-examine Todd using Lopez' statement. But the estate has not pointed to 

any point in the trial transcript at which it made this argument to the trial court as a basis 

for cross-examination of Todd. We therefore find these claims not preserved for appeal. 

See Gannon v. State, 303 Kan. 682, 733, 368 P.3d 1024 (2016). Even so, since the case 

will be retried, whether the Lopez statement is admissible or may be used to impeach 

Todd will be determined at the new trial based on the presentation made there. 

The judgment is reversed, and the case is remanded for further proceedings 

consistent with this opinion.