Dallas v. Donovan, 768 S.W.2d 905 

Court of Appeals of Texas

1989

Chapter

6

Title

Hearsay

Page

213

Topic

803(2) Excited Utterance

Quick Notes

Someone removed a stop sign, which caused Donovan to have a car accident. It was found that the city had actual notice that the sign was missing but failed to replace it within a reasonable time and that the failure was a proximate cause of the collision.  The actual notice was provided by a woman who told Backhaus that days prior to the accident she had reported to the city that the stop sign was down.   This conversation took place after the woman drove up to the scene of the accident minutes after the collision.  It was visibly noticeable to Backhaus that she was affected by what she saw, based on her facial expression and tone of voice.

803(2) Excited Utterance.

o    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

Three required conditions

1.     A startling occasion

2.     A statement before time to fabricate

3.     A statement relating to the circumstances of the occurrence.

Court Holding (Time Requirement)

o    We conclude that the only requirement concerning time with respect to admission of excited utterances is the necessity that the statement be made while in a state of excitement caused by the startling event.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether a statement made in excitement after a startling event is an excited utterance hearsay exception?  Yes, but there are requirements.

Procedure

Trial

o         District Court of Dallas County (Texas) in favor of Donovan in a negligence lawsuit for injuries resulting from a car accident.

Appellant

o         Affirmed

Facts

Discussion

Key Phrases

Rules

Pl Dallas (City), Appellant

Df Donovan, Appellee

Description

o          Michael and Victoria Donovan sued the city because of injuries that they suffered in a collision on January 14, 1984.

o         The accident happened at an intersection in the Dallas city limits.

o         A stop sign, which would have controlled traffic moving in the direction of the Donovan's travel, was down at the time of the accident.

Immune unless reasonable time

o         A governmental unit is immune from liability for damages based on a claim arising from the removal or destruction of a traffic or road sign by a third party unless the governmental unit fails to correct the situation within a reasonable time after actual notice.

Jury City had reasonable time

o         The jury found that a third party had removed the stop sign, that the city did have actual notice that the sign was down, that the city failed to replace the sign within a reasonable time after receiving notice, and that this failure was a proximate cause of the collision.

City argues

o         The trial court erred in admitting certain testimony of Backhaus.

Backhaus Testimony Middle-aged woman reactions to accident

o         He testified that a middle-aged woman drove up to the scene of the accident minutes after the collision.

Physical Reaction

o         She observed the injured children, and Backhaus could tell that she was affected by what she saw, based on her facial expression and tone of voice.

o         He said that she was very excited or upset, she was emotional, her hands were shaking, and her voice was "crackling."

Gave City Action Notice Days Before

o         He said that she volunteered the statement that days prior to the accident she had reported to the city that the stop sign was down.

City Objected to the woman's statement

o         It was inadmissible hearsay

Donovans Argue Excited Utterance

o         The statement was admissible as an excited utterance under rule 803(2) of the Texas Rules of Civil Evidence.

o         The pertinent part of the rule states:  The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . . (2) Excited utterance.  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.

City Argues - lacks the necessary relationship to the startling event

o         The woman's statement lacks the necessary relationship to the startling event.

o         The statement bears no relationship to the events immediately preceding the accident, the accident itself, or the resulting injuries.

Court Womans statement explains the accident

o         The woman's statement about her report to the city concerning the stop sign does tend to explain or illuminate the accident,

o         It does relate to happenings causative of the accident.

Donovans failure to restore the stop sign after actual  notice was a proximate cause of the collision

o         The Donovans argued at trial that the city's failure to restore the stop sign after actual notice was a proximate cause of the collision, and the jury so found.

Court - the woman's statement is probative of actual notice

o         The woman's statement is probative of actual notice to the city that the stop sign was down, it does tend to explain the accident, and it relates to happenings causative of the accident.

o         We view Coleman as supportive of the Donovans' argument that the statement was admissible as an excited utterance.

Texas and Federal Rules are Identical (Pay Attention if you are in a Texas Law School)

o         Commentators, persuasive only, say the statement need only relate to the startling event or condition, thus affording a broader scope of subject matter coverage.

Case: Plaintiffs father said shopper stated

o         The Plaintiff slipped on the fore.

o         A shopper said she informed the stop about the substance about an hour and half ago.

Federal Count Three required conditions were satisfied

1.     A startling occasion

2.     A statement before time to fabricate

3.     A statement relating to the circumstances of the occurrence.

Court In this case

o         The statement was clearly related to the event

o         The statement was probative of actual notice

o         Therefore relates to happenings causative of the accident and

o         It tends to at least partially explain the accident.

o         Excited utterances are not confined to statements describing or explaining the startling event itself.

City Argues Timing issue

o         The statement referred to an incident remote from the startling event in terms of time.

Court Time element is important only with respect to the duration of the declarant's state of excitement

o         The advisory committee suggests that the time element is important only with respect to the duration of the declarant's state of excitement.

o         A statement made while in a condition of excitement theoretically stills the capacity for reflection and prevents fabrication.

o         It is well-settled that declarations concerning incidents occurring before the accident regarding the cause of the accident are admissible.

Court Holding (Time Requirement)

o         We conclude that the only requirement concerning time with respect to admission of excited utterances is the necessity that the statement be made while in a state of excitement caused by the startling event.

Affirmed

Rules

803(2) Excited Utterance.

o    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

Three required conditions

1.     A startling occasion

2.     A statement before time to fabricate

3.     A statement relating to the circumstances of the occurrence.

Court Holding (Time Requirement)

o    We conclude that the only requirement concerning time with respect to admission of excited utterances is the necessity that the statement be made while in a state of excitement caused by the startling event.

Class Notes