Kobielusz v. Wilson

THOMAS, Chief Justice,

specially concurring.

I concur in the result of this case because it does seem to me that the circumstances do create fact questions with respect to the liability of Wilson for permitting a fire which initiated on his property to escape and go onto the property owned by Kobielusz. As I understand this record there is information from which one could conclude that Wilson either knew or, in the exercise of reasonable care, should have known of the existence of the fire. There then would appear to be factual questions with respect to a breach of a duty on the part of Wilson to contain the fire.

I cannot join in the full scope of the majority opinion in this case, because I have doubts that the statements made by Stoffers would be admissible hearsay pursuant to Rule 801(d)(2)(D) of the Wyoming Rules of Evidence. It does not seem to me that this statement was made by Stoffers, admittedly Wilson’s agent or servant, about a matter within the scope of Stof-fers’ agency or employment. Examples of situations in which the employee’s statements were found to be properly admissible are recited in Mahlandt v. Wild Canid Survival and Research Center, Inc., 588 F.2d 626 (8th Cir.1978). I would require the proponent of such a statement for purposes of summary judgment to establish that the matter about which the statement is made was within the scope of the agency or employment of the declarant. I do not perceive this record as being adequate for that purpose.