LDM attorneys Cathy Trent-Vilim and Bill Lamson recently received a decision from the Nebraska Supreme Court affirming the maximum $1 million judgment obtained on behalf of Brian Werner in a suit against Platte County, Nebraska, arising from injuries Mr. Werner suffered while a passenger in a vehicle being pursued by a Platte County deputy.
LDM Partner Cathy Trent-Vilim discusses her recent case in this post.
In appealing the judgment, Platte County assigned numerous errors related to the trial court’s receipt of hearsay into evidence. This post will discuss the Supreme Court’s analysis of the excited utterance exception. In order to understand the Court’s analysis, a few facts about the case are necessary.
The vehicle in which Mr. Werner was riding was traveling at approximately 113 miles per hour when the driver lost control and the car veered down a ditch, into a cornfield, and rolled end-over-end several times. Neither the driver nor Mr. Werner was wearing a seatbelt and were ejected. The driver suffered a head injury and has never regained consciousness. Mr. Werner suffered a back injury and is a paraplegic. While Mr. Werner was being attended to by emergency personnel, he uttered statements to an EMT to the effect of ‘I told him he was going way too fast’ and ‘I kept telling him to let me out.’ These statements were critical to Mr. Werner’s case, for in order to recover under Nebraska’s vehicular pursuit strict liability statute, Mr. Werner had to prove he was not a person sought to be apprehended by law enforcement (i.e., not the driver) and was an “innocent third party” (i.e., that he had not promoted, provoked or persuaded the driver to flee). These statements were evidence of both. Mr. Werner, however, did not recall making any such statements at the scene.
Over the County’s hearsay objections, the trial court allowed the EMT to testify to both statements under the excited utterance hearsay exception. It then relied on these statements in finding for Mr. Werner. Addressing the County’s assignment of error, the Nebraska Supreme Court recited the elements for the excited utterance exception:
- there was a startling event;
- the statement related to the event;
- the statement was made while the declarant was under the stress of the event.
According to the Court:
[t]he key requirement is spontaneity, which ‘requires a showing the statements were made without time for conscious reflection.’
Mr. Werner’s statements to the EMT met the excited utterance exception. First, the pursuit and accident constituted a startling event. Second, Mr. Werner’s statements related to the startling event. Finally, Mr. Werner made the statements while “lying on his back, paralyzed, in a cornfield fighting for his life” and therefore under the stress of the event. Further, the Court rejected the County’s argument that the statements were not spontaneous because they were made in response to questioning by law enforcement. After reviewing the record, the Court noted that while there was some evidence to support the County’s allegations, other evidence indicated that the statements were uttered “several time[s], over and over,” before any provocation by law enforcement. Since the focus of the spontaneity question is whether the statements were made “without conscious reflection,” and the evidence indicated that Mr. Werner had made the statements while “confused at times” and “moaning in pain,” the trial court’s finding that the statements were spontaneous was not clearly erroneous.
Stay tuned for Part II to learn why these same statements, made to someone else, were inadmissible hearsay. Also learn why the trial court’s erroneous admission of these statements did not constitute grounds for a new trial.