Court of Appeals for the Eighth Circuit held that a statement made some four (4) to five (5) minutes after witnessing an accident was an excited utterance under Rule 803(2). In Brunsting v. Lutsen Moun. Corp. 601 F 3d 813 (8th Cir. 2010) plaintiff was injured in a skiing accident when he struck a tree and suffered a serious head injury. Because of his injury he could not remember any details of the accident. An employee of the defendant was on a ski lift and witnessed the accident. She continued on up the lift to alert defendant’s personnel to the accident. She then went back down the mountain to the scene of the accident where she told Trace Benson that she saw plaintiff stumble on a stump, then fall into a tree hitting the tree with his head. Shortly after the accident the witness in a written statement referred to the “exposed tree stump” and said that it seems that some part of the terrain may have caused him to lose control like that.” Two months later in another written statement to “clear up” the first statement she gave on the day of the accident, she said that from her recollection the skier did not hit the stump or any part of the terrain that would have caused him to lose control. In her deposition four (4) years later she was firmer and said she did not see that he should even hit the tree because it did not look like he was having any trouble at all. After ruling that the witness statement was not admissible as excited utterance, the trial court granted summary judgment for the defendant.
The Court of Appeals held that the district court in ruling on the admissibility of the original statement abused its discretion both in its analysis on whether the statement was made in reaction to a truly startling event and whether the statement was made under the stress of excitement caused by that event. The Trial Court considered the event to be the witness seeing the impact with the tree and that the statement wasn’t made until four (4) or five (5) minutes later. The Court of Appeals said that the whole of the event was relevant and the Trial Court should have considered the circumstances surrounding the witness going to the scene and realizing the gravity of the accident. The Court also said that other evidence in the case showed that the witness was extremely alarmed at the time she made the initial statement. The Court also said it was relevant that the witness was an employee of the defendant and the fact that she would spontaneously make such an inculpatory statement supported the conclusion that it was not the product of reflection in deliberation. The court noted that the later statements were under the tutelage of the defendant and counsel and were necessarily the product of greater reflection and deliberation.
The court reversed and remanded and said it should be included in the evidentiary record upon remand as an excited utterance under Rule 803(2).