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.
Verdicts: Appeal and Error. When reviewing a
jury verdict, an appellate court considers the evidence and
resolves evidentiary conflicts in favor of the successful
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.
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.
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.
___. 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.
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
Trial: Evidence: Jury Instructions. An error
in the admission of evidence may be cured by an instruction
from the court.
Pretrial Procedure: Pleadings: Evidence. A
motion in limine is a procedural step to prevent prejudicial
evidence from reaching the jury.
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.
Summary Judgment: Final Orders: Appeal and
Error. The denial of a motion for summary judgment
is not a final order reviewable on appeal.
Negligence: Proof. Establishing that an
accident has occurred does not prove a case of negligence.
Negligence: Evidence: Presumptions: Proof.
Negligence is not presumed and must be proved by evidence,
direct or circumstantial.
from the District Court for Douglas County: Peter C.
Stephen G. Olson II and Andrea A. Montoya, of Engles.
Ketcham, Olson & Keith, PC, for appellant.
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,
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.
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
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).
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.
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.
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 ...