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"Excited Utterance Exception"
by Michael Blahy

When a startling event occurs, people say things about it. But when is what they say admissible in a court of law?

On a visit to a Village Inn restaurant, owned by American Blue Ribbon, 90-year-old Arlene Pantano (Arlene) fell upon entering the restaurant. Arlene broke her hip.

Arlene and her husband, Anthony Pantano (Anthony), filed suit against American Blue Ribbon on October 22, 2015. The suit alleged damages for injuries and loss of consortium suffered.

They both passed away prior to the settlement of the case. Anthony died on March 26, 2016 and Arlene died of natural causes on July 19, 2016.

The lawsuit was revived in the names of the co-personal representatives of Arlene’s and Anthony’s estates (the estates).

A jury trial was held in June 2018, where Arlene’s children, Ross A. Pantano (Ross), Karyl L. Einerson (Karyl), and Marilou DiPrima (Marilou), were all permitted to testify that Arlene told them, that she had tripped on the entryway rug and fell, injuring her hip. American Blue Ribbon’s hearsay objection were denied.

The jury found for the estates in the total amount of $260,000, but found Arlene was 25 percent negligent in the cause of her fall. The district court entered judgment in favor of the estates for $195,000.

American Blue Ribbon appealed and the estates cross appealed.

American Blue Ribbon claimed that the district court erred in:


  1. denying its motions in limine


  2. overruling its hearsay objections as to the testimony of Ross, Karyl, and Marilou


  3. admitting evidence that American Blue Ribbon offered to pay, and then did not pay, medical bills incurred by Arlene


  4. denying its motion for summary judgment


  5. denying its motion for directed verdict


  6. denying its motion for judgment notwithstanding the verdict


  7. denying its motion for new trial

On cross-appeal, the estates claimed that the district court erred in:


  1. overruling their motion to strike American Blue Ribbon’s comparative negligence affirmative defense


  2. instructing the jury as to the comparative negligence affirmative defense


  3. providing a jury verdict form incorporating comparative negligence

Generally, hearsay evidence is inadmissible in a court trial, but the “excited utterance exception” exists when:


  1. there has been a startling event


  2. the statements relate to the event, and


  3. the statements were made by the declarant under the stress of the event

An excited utterance may be subsequent to the event as long as there was not time for the exciting influence to lose its sway.

Ross described his mother as being “upset, crying, and in obvious pain after the fall” and Anthony as “pacing and obviously distressed”. The court decided that to Arlene, the fall was a “startling event” and that “Arlene’s statement that she tripped over the entryway rug was related to that startling event”. The statements to Ross were made “at the restaurant shortly after her fall and prior to her being transported to the hospital”.

Karyl and Marilou described Arlene as “upset and in pain”, “minutes” after Arlene’s arrival to the hospital. Marilou testified that Arlene told her that she tripped on the entryway rug as she entered the restaurant and that Arlene indicated with her hands an irregularity with the rug that Marilou described to Arlene as the rug’s having been buckled.

The Nebraska Supreme Court said “Upon our de novo review, we conclude that Arlene was still under the influence of the startling event at the time she made the statements to Ross, Karyl, and Marilou”.

American Blue Ribbon claimed that Arlene’s statements should be inadmissible since she had been diagnosed with dementia, but offered no evidence and cited no authority against “a person suffering from dementia is still able to experience a startling event and react to that event accordingly”.

Ross testified that a Village Inn employee expressed “that Arlene’s medical bills would be paid by the restaurant”. He also testified that no payment had been received. American Blue Ribbon claimed that the district court erred in allowing this testimony. The Nebraska Supreme Court agreed with American Blue Ribbon on this, pointing that statute provides that “ [e]vidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury”. The Nebraska Supreme Court that errors in the admission of evidence can be cured by an instruction from the court.

In the instructions to the jury, No. 12 was drafted by counsel for American Blue Ribbon and was the cure for the inadmissible testimony error. It read:

    There has been evidence that the Defendant has not paid any of Plaintiffs’ medical bills. The law of Nebraska is that a Defendant such as Village Inn has no duty to pay medical bills of Arlene Pantano unless and until there has been a determination that the Defendant was negligent or breached a duty owed to Arlene Pantano”.

By arguing that the trial court erred with its denial of summary judgment, directed verdict, judgment notwithstanding the verdict, and new trial, American Blue Ribbon suggested lack of evidence to support a finding of liability. The Nebraska Supreme Court accepted the testimony of the “buckled” rug as reported to Karyl and Marilou by their mother. They also accepted Ross’ testimony of one of the servers telling him that she had tripped twice that morning on the entryway rug. The Nebraska Supreme Court found American Blue Ribbon negligent and all of their arguments without merit.

The Nebraska Supreme Court found that the district court did err. American Blue Ribbon did not show that any action, like not wearing glasses, not looking where she was going or shuffling her feet, by Arlene was negligent. They argued that Arlene’s age, dementia diagnosis, and pre-existing medical conditions were such that “could reasonably lead a fact-finder to conclude [that Arlene] was at fault for her fall.”

The estate moved to strike instructing the jury on comparative negligence, and including comparative negligence on the verdict form. By overruling the motion, the district court did err.

The Nebraska Supreme Court concluded:

    Having found that the cross-appeal on the issue of comparative negligence has merit, we conclude that the district court erred in instructing the jury with regard to comparative negligence and in providing a verdict form allowing for a deduction for Arlene’s negligence. The judgment in favor of the estates should not have been reduced by 25 percent, and we therefore modify the judgment to $260,000.

    The decision of the district court is affirmed as modified.

(Pantano v American Blue Ribbon Holdings (Nebraska Supreme Court, 303 Neb. 156))

Decided: May, 2019
Published: May, 2019

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