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Pantano v. American Blue Ribbon Holdings, LLC

Supreme Court of Nebraska

May 17, 2019

ROSS A. PANTANO and Karyl L. Einerson, as Copersonal Representatives of the Estates of Arlene L. Pantano and Anthony R. Pantano, appellees and CROSS-APPELLANTS,
AMERICAN BLUE RIBBON 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.

         1. Verdicts: Appeal and Error. When reviewing a jury verdict, an appellate 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 successful party.

         3. Rules of Evidence: Hearsay: Appeal and Error. 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.

         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 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.

         [303 Neb. 157] 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 evidence may be cured by an instruction from the court.

         8. Pretrial Procedure: Pleadings: Evidence. A motion in limine is a procedural 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 admissibility 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 appellate 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 presumed and must be proved by evidence, direct or circumstantial.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge.

          Stephen G. Olson II and Andrea A. Montoya, of Engles. Ketcham, Olson & Keith, PC, 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.


         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 [303 Neb. 158] $195, 000. American Blue Ribbon Holdings, LLC (American Blue Ribbon), appeals. We affirm as modified.


         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 discussed as appropriate.


         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; [303 Neb. 159] (5) denying its motion for directed ...

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