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Univ. of South Carolina School of Law

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Sunday, January 6, 2008

Rise, All Loyal Cougars: Utah Courts Find Rule 803(4) Partially Repealed Prior Statute

In April 2004, Linda Fox fell while she descended a stairway on the BYU campus, leaving her unable to stand or use her right leg.  Eventually, volunteer EMTs for the Emergency Medical Services team at BYU arrived and examined Mrs. Fox.  They noted that there was swelling on her right knee and deformity on both sides of her leg, but they observed no external trauma to her leg or knee, such as scrapes or scuff marks. 

According to the EMTs, Mrs. Fox told them that she only fell down one stair, that she had previously been diagnosed with osteoarthritis in her right knee, and that there was some missing cartilage in that knee.  They claimed that Mrs. Fox told them that she did not hold BYU responsible, although she had always felt that the stairs were too narrow and dangerous.  Mrs. Fox was later diagnosed with a broken right leg.  Several days after Mrs. Fox's fall, her husband examined the stairs, noted that there was some cracking in the stairs' cement and that some of the metal nosings on the stairs were loose, and took pictures of them.

The Foxes thereafter sued BYU, claiming that it negligently maintained the stairs, resulting in Mrs. Fox's fall and broken right leg.  BYU responded with a motion in limine, which the trial court granted after it converted it to a motion to dismiss.  BYU supported its motion in part through the report by the EMTs, which included Mrs. Fox's statements.  The Foxes claimed that this evidence constituted inadmissible hearsay and contended that BYU had failed to comply with the procedures set forth in Utah Code Section 78-27-33.  Under this section, which was enacted in 1973, a statement "obtained from an injured person within 15 days of an occurrence...by a person whose interest is adverse or may become adverse to the injured person" is not admissible evidence unless the adverse person leaves a "written verbatim copy of the statement...with the injured party at the time the statement was taken," and the injured party does not disavow the statement "in writing" within a specified time.

The Foxes contended that the BYU EMTs were people whose interests were adverse to Mrs. Fox, the injured person, because they were agents of BYU.  They further contended that the EMTs and BYU had failed to comply with with the procedures set forth in Utah Code Section 78-27-33.  The trial court did not reject these contentions, but it determined, and the Utah Court of Appeals agreed, that Utah Rule of Evidence 803(4) partially repealed or limited the applicability of Utah Code Section 78-27-33.  Utah Rule of Evidence 803(4), passed in 1985, allows for the admission into evidence of statements made for the purposes of medical treatment or diagnosis as an exception to the rule against hearsay.  Rule 803(4) lists neither of the procedures set forth in Utah Code Section 78-27-33.  The trial court and the Utah Court of Appeals thus determined that when an injured person makes statements to a person whose interest is adverse and who is also a medical services provider (such as the BYU EMTs), those statements are admissible if they were made for the purposes of medical treatment or diagnosis, regardless of whether the adverse party complied with the procedures set forth in Utah Code Section 78-27-33.

I strongly disagree with the courts' opinions.  It is well established that for a subsequent statute or rule to impliedly repeal a prior statute, there must be an irreconcilable conflict between the two or it must be clear that the latter act or rule covers the whole subject of the earlier one and is clearly intended as a substitute. See National Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2332 (2007).  First, there doesn't appear to be an irreconcilable conflict between the two.  Utah Rule of Evidence 803(4) does not list either of the procedures set forth in Utah Code Section 78-27-33, but nothing in the Rule precludes the possibility of other procedures being applicable when the medical services provider is also a person with an adverse interest.  Second, it is clear that Utah Rule of Evidence 803(4) does not cover the whole subject of Utah Code Section 78-27-33; indeed, the courts noted that Rule 803(4) only repealed Utah Code Section 78-27-33 when the adverse person was also a medical services provider and had no effect on it otherwise.

-CM             

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