dissenting:
As an African-American family group sought service at a Waffle House restaurant, one member of the family, Mark Lander, overheard an employee say, “[W]e don’t serve niggers in here.” This vile statement, which Mr. Lander immediately reported to the other family members, Kathy Lander, Vernon Eddy, Ann Eddy (now deceased), and Lavonna Eddy, provides the basis for racial discrimination claims by all of the family members, who were denied the opportunity to enjoy a meal at the restaurant. I therefore agree with the majority that the district court erred in granting summary judgment to Waffle House on the discrimination claims of Kathy Lander, Vernon Eddy, and Lavonna Eddy, none of whom actually heard the statement. I respectfully dissent, however, from the majority’s conclusion that the error was harmless on the ground that the three dismissed family members would be collaterally estopped by the verdict returned against Mr. Lander at his trial. The three dismissed family members did not have a full and fair opportunity to litigate their claims. Mr. Lander could not adequately represent the interests of the other family members because the rights at stake are personal in nature, he was not accountable to his family members for the results of the litigation, and the district court did not explicitly or tacitly approve of Mr. Lander as a representative of the dismissed family members at his trial. Because Mr. Lander did not represent the interests of the other family members, the collateral estoppel doctrine does not preclude their claims. Additionally, I respect*683fully dissent from the majority’s determination that the district court did not abuse its discretion when it excluded evidence of prior complaints of racial discrimination made against Waffle House. Because of the error in failing to admit this evidence, Mr. Lander is entitled to a new trial.
I.
The facts bear repeating. On July 6, 2000, Mark Lander, his wife, Kathy Lander, Mrs. Lander’s aunt and uncle, Ann and Vernon Eddy, and the Eddys’ granddaughter, Lavonna Eddy, stopped at a Waffle House restaurant in Walterboro, South Carolina, intending to eat. Mrs. Lander stayed in the parking lot to finish an ice cream cone while the others went inside to find a table. Mr. Lander, upon entering the restaurant, heard an adult female voice say, “[W]e don’t serve niggers in here.” J.A. 189A, 202A. Mr. Lander looked in the direction of the voice and saw a young girl and two white, female Waffle House employees standing at the counter. He was certain that the statement came from one of the two employees. All of the other customers and staff members in the restaurant were white. Mr. Lander went to the booth where the Eddys had seated themselves and told them what he had heard. The family decided to leave and made no response when a waitress came over and asked, “May I help you?” J.A. 192A. Those departing met Mrs. Lander at the door, and Mr. Lander told her about the discriminatory statement. Mrs. Lander decided to call a customer complaints hotline listed on a poster in the restaurant’s window. She called from inside the restaurant so the employees could hear her conversation. In response to Mrs. Lander’s complaint, Waffle House sent the Landers and Eddys coupons for use at Waffle House restaurants. A Waffle House representative also spoke to the employees on duty at the time of the incident about Waffle House’s nondiscrimination policy. The representative ultimately concluded that there was no evidence of discrimination.
In July 2003 the Eddys and Landers sued Waffle House for violations of 42 U.S.C. § 1981, Title II (42 U.S.C. § 2000a), and South Carolina law. The district court granted summary judgment against all of the family members except Mr. Lander because only he had heard the statement. Mr. Lander’s case went to trial, and the court excluded evidence of similar complaints of discrimination that had been made against Waffle House before the family’s visit. The jury returned a verdict for Waffle House. Ann Eddy died while the lawsuit was pending, and her claims were dropped. The four other family members appeal.
II.
I respectfully disagree with the majority’s conclusion that the erroneous entry of summary judgment against three of the family members was harmless. Specifically, collateral estoppel does not bar their claims on the basis of Mr. Lander’s unsuccessful trial. The doctrine of collateral estoppel promotes judicial economy and relieves parties of undue burdens by preventing the retrial of issues actually determined and necessarily decided in a prior proceeding where there was a full and fan-opportunity to be heard. Va. Hosp. Ass’n v. Baliles, 830 F.2d 1308, 1311 (4th Cir.1987). I recognize that the requirement of strict mutuality (or complete identity) of parties between suits has long been abandoned. Nevertheless, due process concerns require a court to exercise some caution in binding nonparties to determinations made in a prior proceeding. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). “[A]s a general rule, nonparties will not have had a full *684and fair opportunity to litigate the issues raised in the previous action,” unless the nonparties were in privity with a prior party. See Va. Hosp. Ass’n, 830 F.2d at 1312. In general, privity exists if the non-party (1) controlled the original action, (2) is a successor-in-interest to a prior party, or (3) was adequately represented by a prior party. Martin v. Am. Bancorporation Retirement Plan, 407 F.3d 643, 651 (4th Cir.2005). In other words, preclusion will operate against a nonparty when he is “so identified in interest with a party to former litigation that [the nonparty] represents precisely the same legal right in respect to the subject matter involved.” Jones v. SEC, 115 F.3d 1173, 1180 (4th Cir.1997) (quotation marks and citation omitted). The majority errs in concluding that Mr. Lander adequately represented the interests of Mrs. Lander and the Eddys.
Generally, representation is deemed adequate for preclusion purposes in only the narrowest of circumstances. In Klugh v. United States, 818 F.2d 294 (4th Cir.1987), this court held that adequate, or virtual, representation should not be used as a basis for precluding the claims of nonparties when (1) the interests of the parties and nonparties are separate; (2) the parties to the first action are not accountable to the nonparties; or (3) the court did not at least tacitly approve the virtual representation in the first action. Id. at 300. None of these factors is present here.
First, Mrs. Lander and the Eddys have interests in litigating their claims against Waffle House that are separate and distinct from the interest of Mr. Lander. Racial discrimination “is a fundamental injury to the individual rights of a person,” and § 1981 guarantees “the personal right to engage in economically significant activity free from racially discriminatory interference.” Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) (emphasis added). Similarly, the over-riding purpose of Title II is “to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.” Daniel v. Paul, 395 U.S. 298, 307-08, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969) (quotation marks and citation omitted). The family members here may have suffered the same type of harm from the same source, but each member suffered his or her own humiliation from the discrimination. Thus, each had an interest in vindicating his or her own right to freedom from such discrimination under the law.
Second, applying collateral estoppel would be inappropriate because Mr. Lander has no express or implied legal relationship with the other family members that would make him accountable to them with respect to their claims. See Klugh, 818 F.2d at 300; Media Techs. Licensing, LLC v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed.Cir.2003). Generally, a party is accountable to another party only when they share a legal relationship such as that between estate beneficiaries and administrators, parent corporations and their subsidiaries, and trust beneficiaries and trustees. Pollard v. Cockrell, 578 F.2d 1002, 1008-09 (5th Cir.1978). Mr. Lander’s familial ties to the dismissed parties did not impose on him any legal obligation to vindicate their interests at his trial. The absent family members may have had the same lawyers as Mr. Lander, but once the family members were eliminated from the suit through summary judgment, the lawyers were responsible for advocating solely on Mr. Lander’s behalf. Neither Mr. Lander nor the lawyers had any obligation to conduct his litigation in a manner favorable to the absent family members.
Finally, the district court did not exhibit any explicit or tacit approval of Mr. Lan*685der’s virtual representation of the other family members. Tacit approval may be found when the court knew of a relationship that gave a party authority to appear on behalf of a nonparty. See Martin, 407 F.3d at 651-52. In this case, the district court could not have tacitly approved of Mr. Lander’s representation of the absent family members’ interests because it concluded that they had no interests to be represented (as shown by the summary judgment against them), and the court had no evidence before it of any relationship that would have made Mr. Lander legally accountable to his wife and other family members with respect to their claims.
The absent family members’ separate interests and Mr. Lander’s lack of accountability to them should have foreclosed any determination that Mr. Lander adequately represented their interests in his case. Accordingly, the district court’s grant of summary judgment against them was not harmless. In concluding otherwise, the majority over-looks the test announced in Klugh. It relies instead on two cases that differ sharply from this one. Both of these cases involve plaintiffs who were themselves parties or class members in the litigation that precluded their claims. In Street v. Surdyka, 492 F.2d 368 (4th Cir.1974), we affirmed a grant of summary judgment to nonparty defendants because the same plaintiff had already been unsuccessful in litigating the same claim on the same facts against another defendant. Id. at 374-375. Similarly, in Jackson v. Hayakawa, 605 F.2d 1121 (9th Cir.1979), preclusion was invoked against plaintiffs who were members of a class whose representatives had previously litigated the same claim. Id. at 1126. In Street and Jackson there is no question that the plaintiffs had a full and fair opportunity to litigate, or to have a class representative litigate, all relevant issues of law and fact. The majority mistakenly concludes, however, that these cases support a determination of harmlessness here. But in direct contrast to the situation in Street and Jackson, Mrs. Lander and the Eddys never had an opportunity to litigate their claims either directly or through a legally accountable representative. Mrs. Lander and the Eddys were entitled to their own day in court. I would therefore reverse the district court’s grant of summary judgment against them.
III.
During his trial Mr. Lander sought to introduce evidence of other complaints of racial discrimination against Waffle House both before and after the July 2000 incident. The evidence took the form of news articles, legal pleadings, and testimony of Waffle House employees who had witnessed similar discrimination. The district court granted Waffle House’s motion in limine to exclude the evidence. Again, I respectfully disagree with the majority and would hold that the district court abused its discretion by excluding evidence of pre-July 2000 complaints. This evidence was relevant non-hearsay, and its exclusion warrants a new trial.
The Federal Rules of Evidence instruct that “[a]ll relevant evidence is admissible, except as otherwise provided” by law or rule. Fed.R.Evid. 402. Relevant evidence is defined broadly as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. A failure to admit relevant evidence without a legally supported reason constitutes an abuse of discretion and may require a new trial. See Westfield Ins. Co. v. Harris, 134 F.3d 608, 615 (4th Cir.1998).
The district court did not clearly state its reasons for excluding the complaints evidence. It lumped the pre-July and post-July 2000 evidence together and *686deemed it all irrelevant because Waffle House’s evidence of post-July 2000 training already had been excluded. While this may have provided a reason for excluding complaints based on post-July 2000 incidents, it does not explain why pre-July 2000 incidents are irrelevant. The majority fails to acknowledge this significant gap in the district court’s reasoning.
The only explanation provided by the district court that covers the pre-July 2000 evidence is the conclusory statement that newspaper articles, which account for roughly one-fourth of the evidence, are generally unreliable. The court did not explain how this prevented the evidence from being used for the proposed non-hearsay purpose of showing that Waffle House had notice of the potential ineffectiveness of its anti-discrimination policies. The majority similarly ignores this possible use of the complaints and concludes that they are inadmissible hearsay.
An out-of-court statement is not hearsay when it is “offered not for [its] truth but to prove the extent of ... a recipient’s notice of certain conditions.” 5-801 Weinstein’s Federal Evidence § 801.11[5][a]. Evidence of prior complaints is often admitted to show notice of an underlying problem that allegedly injured the plaintiff. See Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1385-86 (4th Cir.1995); United States v. Chavis, 772 F.2d 100, 105 (5th Cir.1985); Worsham v. A.H. Robins Co., 734 F.2d 676, 688-89 (11th Cir.1984). Complaints prior to the July 2000 incident are relevant to show that Waffle House had notice of a potential discrimination problem in its restaurant chain and knew that its anti-discrimination policies may have been inadequate. This notice and knowledge is relevant to the issues of whether Waffle House is liable for the actions of its employee and whether it acted with sufficient intent or recklessness to warrant punitive damages.
The erroneous exclusion of the prior complaints deprived Mr. Lander of critical evidence of Waffle House’s knowledge of ongoing discrimination and potential problems with its anti-discrimination policies at the time of the incident. Because the district court failed to differentiate between the relevance of the pre- and post-July 2000 complaints and failed to recognize the non-hearsay nature of this evidence, I would grant Mr. Lander a new trial to give a jury the opportunity to assess his claim in light of this additional evidence.