Dallas (City), Appellant
Michael and Victoria Donovan sued the city because of injuries
that they suffered in a collision on January 14, 1984.
The accident happened at an intersection in the Dallas city
stop sign, which would have controlled traffic moving in the
direction of the Donovan's travel, was down at the time of the
Immune unless reasonable time
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
Jury City had reasonable time
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.
The trial court erred in admitting certain testimony of
Backhaus Testimony Middle-aged woman reactions to accident
He testified that a middle-aged woman drove up to the scene of
the accident minutes after the collision.
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.
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
He said that she volunteered the statement that days prior to
the accident she had reported to the city that the stop sign was
City Objected to the woman's statement
It was inadmissible hearsay
Donovans Argue Excited Utterance
The statement was admissible as an excited utterance under rule
803(2) of the Texas Rules of Civil Evidence.
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
The woman's statement lacks the
necessary relationship to the startling event.
The statement bears no relationship
to the events
immediately preceding the
accident itself, or the
Womans statement explains the accident
The woman's statement about her report to the city concerning
the stop sign does tend to explain or illuminate the accident,
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
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.
- the woman's statement is probative of actual notice
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
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)
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
The Plaintiff slipped on the fore.
shopper said she informed the stop about the substance about an
hour and half ago.
Federal Count Three required conditions were satisfied
statement before time to fabricate
statement relating to the circumstances of the occurrence.
Court In this case
The statement was clearly related to
The statement was probative of
Therefore relates to happenings
causative of the accident and
It tends to at least partially explain the accident.
Excited utterances are not confined to statements describing or
explaining the startling event itself.
City Argues Timing issue
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
The advisory committee suggests that the
time element is important only with
respect to the duration of the declarant's state of excitement.
statement made while in a condition of excitement theoretically
stills the capacity for reflection and prevents fabrication.
It is well-settled that declarations concerning incidents
occurring before the accident regarding the cause of the
accident are admissible.
Court Holding (Time Requirement)
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.