Federal Evidence Review

In negligence suit against ski resort for the defective design of the ski run on which plaintiff was injured after hitting a tree stump, evidence of percipient witness’s statement to the victim’s friend on the cause of the victim’s ski accident was hearsay but was admissible as an excited utterance under FRE 803(2), in Brunsting v. Lutsen Mountains Corp., 601 F.3d 813 (8th Cir. April 13, 2010) (No. 09-1075)

The classic case of an excited utterance involves a witness’s who was just that – a statement made under stress of excitment. But what counts as an excited reaction under the rule, particularly if others at the scene do not express the same reaction? A recent case decided by the Eighth Circuit identified and extensively discussed factors that establish the foundation for application of the rule.

In the case, plaintiff Brunstig suffered severe injuries while skiing at the defendant’s ski resort. Considered an “intermediate skier,” he skied only three times per year. But on the day of the accident, the plaintiff was accompanied by his friend Benson. Benson did not see the accident occur, but did see the aftermath. As he was making his way down a run, he came across “Brunsting lying unconscious in the snow and bleeding from the mouth.” But Benson did get an explanation of what happened to his friend. From a nearby chairlift, a witness of the accident (Christiansen) yelled down to Brunsting that an accident occurred. According to the circuit, Christiansen and her companion Walch “arrived at the scene a short time later,” having first alerted resort 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, 601 F.3d at 816.

In the plaintiff’s suit against the defendant, the trial court excluded what Christiansen told Benson about the accident. The trial judge reasoned that “the statement did not qualify as an excited utterance” because 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. Because the statement was inadmissible hearsay, it could not support Brunsting’s opposition to summary judgment. Accordingly, the court granted summary judgment in favor of Lutsen.” Brunsting, 601 F.3d at 817.

The plaintiff challenged the grant of summary judgment to the defendant, noting in particular that the trial judge struck the excited utterance evidence. The circuit reversed and remanded the case, reasoning that although the statement was hearsay, it was admissible as an excited utterance under FRE 802(3). In particular, the circuit noted that the percipient witness’s statement to Benson on the cause of the victim’s ski injury was admissible as an excited utterance because it was made upon the witness seeing a “near-fatal traumatic accident … and immediately rushing to the scene where” the victim was “unconscious, bleeding from the mouth, turning blue and believed to be near death,” and the witness described her self at the time as “nervous … [and] so panicked and anxious from what had just happened that [she] just felt shaky.” Brunsting, 601 F.3d at 819.

In reaching this conclusion the circuit identified the foundational elements for admission of a statement as an excited utterance. The rule required a three-part showing: “[T]o establish that a hearsay statement qualifies as an excited utterance, the proponent must prove three elements: ‘(i) that the statement was in reaction to a truly startling event; (ii) that the statement was made under the stress of excitement caused by that event; and (iii) that the statement relates to the event.’” Brunsting, 601 F.3d at 823.

As the circuit applied these foundations, it also clarified them. For example, on the element requiring that the statement be made under the stress of excitement caused by a startling event, the circuit explained that this involved a showing that the declarant of the statement “was still under the stress of excitement caused by an event when a statement was made, we consider the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. We also examine whether the declarant’s stress or excitement was continuous from the time of the event until the time of the statements.”

Brunsting, 601 F.3d at 818 (quoting United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007)).

In Brunsting’s case, the circuit also criticized the trial judge for failing to “identify the entirety of the ‘event‘” in its discussion of the excited utterance exception:

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.

Brunsting, 601 F.3d at 818-19.

The circuit also explained that the trial judge should carefully examine the context of the excited utterance. For example:

“[T]here are other relevant factors that the district court failed to balance in the excited utterance equation. First, Christiansen’s status as an employee of Lutsen bolsters the conclusion that her immediate statements were not the product of reflective thought. We readily acknowledge that the discussion today does not involve admissions by a party-opponent admissible under Rule 801(d)(2), but the relationship is still notable in our analysis of whether Christiansen was under the stress of excitement caused by the accident. 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. Too, the 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. The district court abused its discretion in only crediting Christiansen’s later statements and failing to balance these factors in its analysis.”

Brunsting, 601 F.3d at 820.

“In light of this evidence, and viewing the ‘event’ at issue through the appropriate lens,” concluded the circuit, “we cannot hold that the district court chose from merely two permissible views of the evidence, or range of choices, but rather erred in its analysis as only one conclusion is apparent. The district court abused its discretion in its determination that Christiansen’s statement to Benson was inadmissible hearsay. It should be included in the evidentiary record upon remand as an excited utterance under Rule 803(2).” Brunsting, 601 F.3d at 820.