Employee’s ‘excited utterance’ admissible in ski accident case
The talkative employee can be a gold mine for plaintiffs’ attorneys.
The offhand comment by a defendant’s employee just might be the key piece of evidence needed to get a personal injury or employment case before a jury.
Take the case of Keith Brunsting and the resort employee who saw the skier lose control and crash headfirst into a tree.
Brunsting and friend Trace Benson were skiing the Alpha run at Lutsen Mountains on the afternoon of February 26, 2004. Lutsen Mountains is a ski resort 90 miles northeast of Duluth, Minnesota.
Sherry Christiansen — an off-duty Lutsen employee — was on the Timberwolf chairlift overlooking the Alpha run. She saw Brunsting ski down the slope, lose control and crash headfirst into a tree near the edge of the run.
Brunsting suffered a severe brain injury in the fall that left him permanently disabled. He sued Lutsen Mountains for negligent maintenance of the ski slope, alleging that his fall was caused by an exposed tree stump near the scene of the accident.
The problem for Brunsting was that his injuries left him with no memory of the accident, so he couldn’t testify that he in fact struck the stump before his fall. And Benson, Brunsting’s friend, never saw the accident.
That’s where Sherry Christiansen comes in.
According to Benson, Christiansen arrived at the scene to lend a hand about four or five minutes after Brunsting’s fall.
Benson claimed that at that point Christiansen told him that she “saw [Brunsting] stumble on a stump, then fall into a tree, hitting the tree with his head.”
So Brunsting had his evidence linking his fall to the tree stump. Or did he?
A U.S. district judge ruled Christiansen’s statement inadmissible, concluding that it did not qualify as an “excited utterance” under Federal Rule of Evidence 803(2).
The rule excepts from the hearsay rule any “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
The judge reasoned that the hearsay exception did not apply because Christiansen made the statement four to five minutes after witnessing Brunsting’s fall and in response to an inquiry by Benson rather than spontaneously.
With Christiansen’s statement out of the mix, the judge granted Lutsen’s motion for summary judgment, finding that Brunsting couldn’t show that the tree stump caused his fall.
Yesterday, the 8th Circuit breathed new life into Brunsting’s lawsuit, deciding that Christiansen’s statement was an excited utterance.
The 8th Circuit first found that the district judge was mistaken in his analysis of whether Christiansen’s statement was made in reaction to a truly startling event.
The court found that the district judge improperly limited the “event” under Rule 803(2) to the moment that Christiansen witnessed the accident from her position on the chair lift.
“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 8th Circuit said.
The court further found that the district judge should have given more weight to Christiansen’s status as an employee of Lutsen.
“That an employee of Lutsen would spontaneously make such an inculpatory statement buttresses the conclusion that it was not the product of reflection and deliberation,” the court said.
Finally, the 8th Circuit found compelling the fact that Christiansen backed away from statements on the day of the accident that Brunsting had struck the stump — once it became clear her employer would be the target of a lawsuit.
“[T]he inconsistencies between the statements Christiansen made at the scene and in her first written statement given the day of the accident; and the statements she provided two months and four years later, respectively, under the tutelage of the Lutsen people and counsel (necessarily the product of greater reflection and deliberation), enhance the veracity and credibility of the statements she made the day of the accident. …
“At the very least, this suspect change of tune must give us pause in our consideration. The consistency of the separate statements made the day of the accident gives credence to the fact that they were given without reflection or deliberation under the stress and excitement of the event,” court concluded. (Brunsting v. Lutsen Mountains)
- Pat Murphy
