Thursday, April 15, 2010
Event Horizon: Eighth Circuit Finds District Court Failed To Identify Entirety Of Startling Event For Excited Utterance Purposes
Federal Rule of Evidence 803(2), the excited utterance exception, provides an exception to the rule against hearsay for
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Absent an abuse of discretion, an appellate court will not reverse a trial court's ruling under the excited utterance exception. In its recent opinion in Brunsting v. Lutsen Mountains Corp., 2010 WL 1440350 (8th Cir. 2010), however, the Eighth Circuit found just such an abuse of discretion. And one of its reasons for doing so was that the district court failed to identify the entirety of the startling event for excited utterance purposes, which, according to the Eighth Circuit includes not just the underlying startling event, but its aftermath.
In Brunsting, Keith Brunsting and his friend, Trace Benson, were skiing at Lutsen and began skiing down the Alpha run,
a groomed, intermediate-level run that runs near or below the Timberwolf chairlift. After reaching the bottom, the men took the Timberwolf chairlift back to the top of the mountain. Brunsting then proceeded down the Alpha run again, while Benson waited behind at the top of the mountain. As Brunsting made his way down, he was spotted by two off-duty Lutsen employees-Sherry Christiansen and Henry Walch-who were on the Timberwolf chairlift. They witnessed Brunsting skiing down the run, then lose control and crash headfirst into a tree near the edge of the Alpha run. There was a partially exposed tree stump near the area where Brunsting had lost control and crashed.
Shortly thereafter, Benson-who did not witness the accident-began making his way down Alpha and soon came across Brunsting lying unconscious in the snow and bleeding from the mouth. From the chairlift, Christiansen saw Benson approach Brunsting and she yelled down at him to alert him of the accident. Christiansen and Walch arrived at the scene a short time later, having alerted Lutsen personnel at the top of the mountain of the accident. At that point, according to Benson, Christiansen told him that she "saw [Brunsting] stumble on a stump, then fall into a tree, hitting the tree with his head." A few moments later, a group of off-duty nurses who happened to have been skiing in the vicinity joined the scene. Because Brunsting was seriously injured and did not appear to be breathing, and looked blue, the nurses began performing CPR. They were able to get Brunsting breathing again, after which ski patrol personnel arrived and took Brunsting down the mountain for further medical attention. As a result of the brain injury Brunsting suffered that day, he has no memory of the accident or anything else about the trip to Lutsen Mountains. He is permanently disabled and is no longer able to work.
Brunsting thereafter sued Lutsen, claiming that Lutsen was negligent in the design, maintenance, operation, and supervision of its ski facilities by failing to remove a tree stump that caused Brunsting to lose control and crash. The district court granted Lutsen's motion for summary judgment, finding that Christiansen's statement regarding the stump
did not qualify as an excited utterance where it was made four to five minutes after witnessing Brunsting's fall, it was made in response to Benson's inquiry and not spontaneously, Christiansen showed no outward signs of being in an excited state when she made the statement, and Christiansen and Brunsting were strangers.
On Brunsting's ensuing appeal, the Eighth Circuit disagreed, finding, inter alia, that
the district court abused its discretion...in its analysis of whether Christiansen's statement was made in reaction to a truly startling event, and whether the statement was made under the stress of excitement caused by that event. As to the first element regarding the existence of a truly startling event, perhaps the error of the district court is best articulated as its failure to identify the entirety of the "event" for purposes of the Rule 803(2) discussion. The court seems to have truncated the event, limiting its discussion of Christiansen's statement relative only to the singular event of Christiansen's witnessing of Brunsting's impact with the tree. For example, the court discusses the "four to five minutes" between the accident and Christiansen's statement to Benson, necessarily implying that the "startling event" occurred on the chairlift. Limiting the discussion in that manner was an abuse of discretion. It was the whole of the event that is relevant for purposes of the Rule 803(2) analysis: witnessing a near-fatal traumatic accident from the chairlift and immediately rushing to the scene where Brunsting was unconscious, bleeding from the mouth, turning blue and believed to be near death, as others tried to stabilize him until medical assistance arrived. It was a chaotic scene and Christiansen realized the gravity of the accident-that she might indeed be witnessing a man's death. The difference between the two definitions of what constitutes the "event" for purposes of the Rule 803(2) analysis is pivotal, as there was little or no time lapse between the latter-defined “event” and the statement at issue because the statement was made contemporaneously with the singular startling event.