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05/31/2019 08:07 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                 PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                                              Cite as 303 Neb. 156




                    Ross A. Pantano and K aryl L. Einerson, as Copersonal
                     R epresentatives of the Estates of A rlene L. Pantano
                            and A nthony R. Pantano, appellees and
                           cross-appellants, v. A merican Blue R ibbon
                         Holdings, LLC, doing business as Village Inn,
                          appellant and cross-appellee, and Francis J.
                           Kucirek, as Trustee of the Kucirek Living
                           Trust, and Pamela K. Kucirek, as Trustee
                             of the Kucirek Living Trust, appellees.
                                                 ___ N.W.2d ___

                                        Filed May 17, 2019.     No. S-18-815.

                 1. Verdicts: Appeal and Error. When reviewing a jury verdict, an appel-
                    late court considers the evidence and resolves evidentiary conflicts in
                    favor of the successful party.
                 2. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
                    aside unless clearly wrong, and it is sufficient if there is competent
                    evidence presented to the jury upon which it could find for the success-
                    ful party.
                 3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
                    ings under the residual hearsay exception, an appellate court reviews
                    for clear error the factual findings underpinning a trial court’s hear-
                    say ruling and reviews de novo the court’s ultimate determination to
                    admit evidence over a hearsay objection or exclude evidence on hear-
                    say grounds.
                 4. Rules of Evidence: Hearsay. An excited utterance does not have to be
                    contemporaneous with the exciting event. It may be subsequent to the
                    event if there was not time for the exciting influence to lose its sway.
                 5. ____: ____. The true test of an excited utterance is not when the excla-
                    mation was made but whether, under all the circumstances, the declarant
                    was still speaking under the stress of nervous excitement and shock
                    caused by the event.
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             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
            PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                         Cite as 303 Neb. 156

 6. ____: ____. Relevant facts to determine whether a statement is an
    excited utterance include the declarant’s manifestation of stress and the
    declarant’s physical condition.
 7. Trial: Evidence: Jury Instructions. An error in the admission of evi-
    dence may be cured by an instruction from the court.
 8. Pretrial Procedure: Pleadings: Evidence. A motion in limine is a pro-
    cedural step to prevent prejudicial evidence from reaching the jury.
 9. Trial: Pleadings: Evidence: Appeal and Error. It is not the office
    of a motion in limine to obtain a final ruling upon the ultimate admis-
    sibility of the evidence. Therefore, when a court overrules a motion in
    limine to exclude evidence, the movant must object when the particular
    evidence is offered at trial in order to predicate error before an appel-
    late court.
10. Summary Judgment: Final Orders: Appeal and Error. The denial
    of a motion for summary judgment is not a final order reviewable
    on appeal.
11. Negligence: Proof. Establishing that an accident has occurred does not
    prove a case of negligence.
12. Negligence: Evidence: Presumptions: Proof. Negligence is not pre-
    sumed and must be proved by evidence, direct or circumstantial.

   Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed as modified.
  Stephen G. Olson II and Andrea A. Montoya, of Engles,
Ketcham, Olson & Keith, P.C., for appellant.
  John M. Lingelbach, Minja Herian, and Casandra M.
Langstaff, of Koley Jessen, P.C., L.L.O., for appellees Ross A.
Pantano and Karyl L. Einerson.
  Heavican, C.J.,          Cassel,     Stacy,     Funke,      Papik,    and
Freudenberg, JJ.
   Heavican, C.J.
                      INTRODUCTION
   Following trial, a jury entered a verdict in favor of the
estate of Arlene L. Pantano for $245,000 and in favor of the
estate of Anthony R. Pantano for $15,000, but found that
Arlene was 25 percent negligent. Accordingly, the district
court entered a judgment for the estates in the amount of
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
          PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                       Cite as 303 Neb. 156

$195,000. American Blue Ribbon Holdings, LLC (American
Blue Ribbon), appeals. We affirm as modified.
                 FACTUAL BACKGROUND
   Arlene and her husband, Anthony, filed suit against
American Blue Ribbon on October 22, 2015. The suit alleged
damages for injuries and loss of consortium suffered when
Arlene fell at a Village Inn restaurant owned by American
Blue Ribbon. Arlene alleged that she suffered a broken hip
when she tripped on an entryway rug and fell near the
entrance of the restaurant.
   Arlene died of natural causes on July 19, 2016. Anthony had
died approximately 4 months earlier, on March 26. This lawsuit
was revived in the names of the copersonal representatives of
Arlene’s and Anthony’s estates (the estates).
   A jury trial was held in June 2018. The jury found for the
estates in the total amount of $260,000, but found Arlene
was 25 percent negligent in the cause of her fall. The district
court entered judgment in favor of the estates for $195,000.
American Blue Ribbon appealed.
   At trial, Arlene’s children, Ross A. Pantano, Karyl L.
Einerson (Karyl), and Marilou DiPrima (Marilou), were all
permitted to testify, over American Blue Ribbon’s hearsay
objection, that Arlene told them that she had tripped on the
entryway rug at the restaurant and fell, injuring her hip. In
addition, evidence was adduced as to Arlene’s medical bills,
along with testimony that American Blue Ribbon had not paid
those bills. Further details of evidence offered will be dis-
cussed as appropriate.
                 ASSIGNMENTS OF ERROR
   On appeal, American Blue Ribbon assigns that the district
court erred in (1) denying its motions in limine; (2) overruling
its hearsay objections as to the testimony of Ross, Karyl, and
Marilou; (3) admitting evidence that American Blue Ribbon
offered to pay, and then did not pay, medical bills incurred
by Arlene; (4) denying its motion for summary judgment;
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             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
             PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                          Cite as 303 Neb. 156

(5) denying its motion for directed verdict; (6) denying its
motion for judgment notwithstanding the verdict; and (7) deny-
ing its motion for new trial.
   On cross-appeal, the estates assign that the district court
erred in (1) overruling their motion to strike American Blue
Ribbon’s comparative negligence affirmative defense, (2)
instructing the jury as to the comparative negligence affirma-
tive defense, and (3) providing a jury verdict form incorporat-
ing comparative negligence.

                  STANDARD OF REVIEW
   [1,2] When reviewing a jury verdict, an appellate court
considers the evidence and resolves evidentiary conflicts in
favor of the successful party.1 A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is com-
petent evidence presented to the jury upon which it could find
for the successful party.2
   [3] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de
novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay
grounds.3

                        ANALYSIS
   The primary issues on appeal in this case are (1) whether
statements made by Arlene and Anthony at the time of Arlene’s
fall were admissible under the so-called excited utterance
exception to the prohibition against hearsay4; (2) whether

1
    Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
    (2018).
2
    Id.
3
    TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908
    N.W.2d 60 (2018).
4
    See Neb. Rev. Stat. § 27-803(1) (Reissue 2016).
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
             PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                          Cite as 303 Neb. 156

the admission into evidence of a statement of a Village Inn
employee suggesting that American Blue Ribbon would pay
Arlene’s medical bills, along with testimony that American
Blue Ribbon did not pay those bills, was prejudicial; and (3)
whether the district court erred in instructing the jury with
regard to American Blue Ribbon’s affirmative defense of com-
parative negligence.
Excited Utterance.
   American Blue Ribbon assigns on appeal that the district
court erred in admitting Arlene’s statement that she fell on the
entryway rug, because that statement was hearsay and did not
fall within the excited utterance exception to the hearsay rule.
Specifically, American Blue Ribbon contends that Arlene’s
statement did not relate to a “startling event”5; that the state-
ment was not made under the “stress” of the event6; and that,
in any case, the statement was unreliable because Arlene had
dementia. In addition, American Blue Ribbon argues that the
estates did not establish that there was a defect in the entryway
rug that would allow Ross’ testimony regarding Arlene’s state-
ment to be considered reliable.
   Section 27-803 provides that “[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” is
“not excluded by the hearsay rule.” For a statement to qualify
as an excited utterance under § 27-803(1), the following crite-
ria must be established: (1) There must have been a startling
event, (2) the statement must relate to the event, and (3) the
statement must have been made by the declarant under the
stress of the event.7
   [4-6] An excited utterance does not have to be contempo-
raneous with the exciting event. It may be subsequent to the

5
    Id.
6
    Id.
7
    State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
              PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                           Cite as 303 Neb. 156

event if there was not time for the exciting influence to lose
its sway.8 The true test is not when the exclamation was made
but whether, under all the circumstances, the declarant was
still speaking under the stress of nervous excitement and shock
caused by the event.9 “Relevant facts include the declarant’s
manifestation of stress, such as ‘“yelling,”’ and the declarant’s
physical condition.”10
    Arlene’s statements to her children regarding the cause of
her injury fall within the excited utterance exception. Ross tes-
tified that Arlene, who was 90 years old at the time, was upset,
crying, and in obvious pain after the fall. The evidence showed
that Arlene had fractured her hip during the incident. Anthony
was pacing and obviously distressed. Thus, when considered
as to this declarant, the fall would be a startling event. And
Arlene’s statement that she tripped over the entryway rug was
related to that startling event.
    Furthermore, Arlene’s statement to Ross that she had tripped
over the entryway rug was made at the restaurant shortly after
her fall and prior to her being transported to the hospital.
Arlene’s statements to Karyl and Marilou were made within
“minutes” of Arlene’s transport to the hospital. Both Karyl
and Marilou testified that their mother was upset and in pain.
Marilou testified that Arlene told her that she tripped on the
entryway rug as she entered the restaurant and that Arlene indi-
cated with her hands an irregularity with the rug that Marilou
described to Arlene as the rug’s having been buckled.
    Upon our de novo review, we conclude that Arlene was still
under the influence of the startling event at the time she made
the statements to Ross, Karyl, and Marilou.
    And we find no merit to American Blue Ribbon’s assertion
that the fact that Arlene had been diagnosed with dementia

 8
     Id.
 9
     Id.
10
     Id. at 929, 906 N.W.2d at 325.
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
              PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                           Cite as 303 Neb. 156

affected the admissibility of her statements as excited utter-
ances. American Blue Ribbon is correct that the touchstone
of the excited utterance exception is trustworthiness. But a
person suffering from dementia is still able to experience a
startling event and react to that event accordingly. American
Blue Ribbon cited to no authority and offered no evidence to
suggest otherwise. A reaction to a startling event made under
the stress of that event is reflexive and unthinking; it is not the
product of conscious thought.11 Such a statement might not be
accurate, and any shock might have interfered with the declar-
ant’s observation or memory,12 but that does not prevent the
statement from being an excited utterance. That Arlene was
diagnosed with dementia was evidence produced at trial, but
that fact does not affect the admissibility of her statement as an
excited utterance. There is no merit to this assertion.

Admission of Offer to Pay
Medical Expenses.
   American Blue Ribbon also argues that the district court
erred in allowing Ross to testify that a Village Inn employee
told him that Arlene’s medical bills would be paid by the res-
taurant and in admitting Ross’ testimony that American Blue
Ribbon and Village Inn had not, in fact, paid those bills.
   Neb. Rev. Stat. § 27-409 (Reissue 2016) provides that
“[e]vidence of furnishing or offering or promising to pay medi-
cal, hospital, or similar expenses occasioned by an injury is
not admissible to prove liability for the injury.” As American
Blue Ribbon observes, Ross was permitted, in contravention of
this statute, to testify that a Village Inn employee told him that
Arlene’s medical expenses would be paid by the restaurant, but
that the bills were not ever paid by Village Inn or American
Blue Ribbon.

11
     G. Michael Fenner, The Hearsay Rule 116 (3d ed. 2013).
12
     Id.
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
              PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                           Cite as 303 Neb. 156

   [7] But this court has held that an error in the admission of
evidence may be cured by an instruction from the court.13 In
this case, jury instruction No. 12 was also read to the jury:
         There has been evidence that the Defendant has not
      paid any of Plaintiffs’ medical bills. The law of Nebraska
      is that a Defendant such as Village Inn has no duty to pay
      medical bills of Arlene Pantano unless and until there has
      been a determination that the Defendant was negligent or
      breached a duty owed to Arlene Pantano.
Indeed, instruction No. 12 was drafted by counsel for American
Blue Ribbon and was the suggested cure for the error of the
erroneous admission of Ross’ testimony. There is no merit to
this assignment of error.

Liability of American Blue Ribbon.
   American Blue Ribbon does not specifically assign that the
district court erred in finding sufficient evidence to support
the jury’s finding of liability. But it does argue as much in its
discussion of its assigned errors of the court’s denial of sum-
mary judgment, directed verdict, judgment notwithstanding
the verdict, and new trial.
   In any case, American Blue Ribbon’s contention is without
merit, because there was evidence to support the jury’s finding
of liability. First, Karyl and Marilou both testified that Arlene
told them that she tripped over the entryway rug at the Village
Inn and that, in the words of Marilou, the rug was “buckled.”
As noted above, Arlene’s statements are admissible hearsay
under the excited utterance exception.
   In addition, Ross testified that as Arlene was getting loaded
into an ambulance, a Village Inn server wearing a name tag
with the name “Makenzie” told him that she had tripped
on the entryway rug twice that morning. Though American
Blue Ribbon objected at trial on the basis that the server’s

13
     Olson v. City of Omaha, 232 Neb. 428, 441 N.W.2d 149 (1989).
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
              PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                           Cite as 303 Neb. 156

statement was inadmissible hearsay, they did not clearly
assign and argue that admission as error on appeal. There was
sufficient evidence that American Blue Ribbon was negligent,
and thus there is no merit to American Blue Ribbon’s assign-
ments of error regarding the denial of its motion for directed
verdict, for judgment notwithstanding the verdict, and for
new trial.

Remaining Assignments of Error.
   American Blue Ribbon has also alleged various other assign-
ments of error, all of which are without merit.
   First, American Blue Ribbon contends that the district court
erred in denying its motions in limine, specifically arguing that
the estates failed to disclose witnesses, and for that reason the
testimony of those witnesses should be stricken.
   [8,9] A motion in limine is a procedural step to prevent
prejudicial evidence from reaching the jury.14 It is not the office
of a motion in limine to obtain a final ruling upon the ultimate
admissibility of the evidence.15 Therefore, when a court over-
rules a motion in limine to exclude evidence, the movant must
object when the particular evidence is offered at trial in order
to predicate error before an appellate court.16 Thus, by assign-
ing only that the court erred in denying its motions in limine,
American Blue Ribbon has failed to preserve those arguments
on appeal.
   Moreover, American Blue Ribbon simply argues that certain
witnesses were not disclosed and that their testimonies should
be stricken. But American Blue Ribbon does not identify in its
brief which witnesses were not disclosed. It is not the job of
this court to search the record to find error. There is no merit
to this assignment of error.

14
     McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).
15
     Molt v. Lindsay Mfg. Co., 248 Neb. 81, 532 N.W.2d 11 (1995).
16
     McCune v. Neitzel, supra note 14.
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
              PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                           Cite as 303 Neb. 156

   [10] American Blue Ribbon also assigns that the district
court erred in denying its motion for summary judgment. But
the denial of a motion for summary judgment is not a final
order reviewable on appeal,17 and as such, this assignment is
without merit.
   Finally, American Blue Ribbon also argues, though does not
assign, that the district court erred in allowing Ross to testify
regarding the effect that Arlene’s fall had on her dementia.
Because this was not specifically assigned as error, we will not
address that contention further.

Comparative Negligence.
   In its cross-appeal, the estates contend that the district court
erred in overruling their motion to strike, instructing the jury
on comparative negligence, and including comparative neg-
ligence on the verdict form, because American Blue Ribbon
failed to offer any evidence that Arlene was negligent.
   In response, American Blue Ribbon argues that the estates
did not prove that it was negligent and further asserts that
Arlene’s age, dementia diagnosis, and preexisting medical con-
ditions were such that “could reasonably lead a fact-finder to
conclude [that Arlene] was at fault for her fall.”18
   [11,12] Establishing that an accident has occurred does not
prove a case of negligence.19 Negligence is not presumed and
must be proved by evidence, direct or circumstantial.20 Nothing
American Blue Ribbon directs us to shows that any action by
Arlene was negligent. As the estates argue, there is no sugges-
tion that Arlene was not wearing her glasses or shuffling her
feet or that she did not look where she was going. Nor was
there evidence that due to her age and health, Arlene should

17
     See Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).
18
     Reply brief for appellant at 28.
19
     Burns v. Veterans of Foreign Wars, 231 Neb. 844, 438 N.W.2d 485 (1989).
20
     Id.
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          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
          PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
                       Cite as 303 Neb. 156

have known to use a wheelchair or a walker. In short, there is
no evidence supporting a conclusion that Arlene was negligent.
We accordingly find that the estates’ assignment of error on
cross-appeal has merit.
   Having found that the cross-appeal on the issue of compara-
tive negligence has merit, we conclude that the district court
erred in instructing the jury with regard to comparative negli-
gence and in providing a verdict form allowing for a deduction
for Arlene’s negligence. The judgment in favor of the estates
should not have been reduced by 25 percent, and we therefore
modify the judgment to $260,000.

                       CONCLUSION
  The decision of the district court is affirmed as modified.
                                         A ffirmed as modified.
  Miller-Lerman, J., not participating.
