Brunsting v. Lutsen Mountains Corp.

• Decision Date: 13 April 2010
• Docket Number: No. 09-1075.,09-1075.
• Citation: 601 F.3d 813
• Parties: Keith BRUNSTING; Cheri Brunsting, Appellants, v. LUTSEN MOUNTAINS CORPORATION; Lutsen Mountains Lodging Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

601 F.3d 813

Keith BRUNSTING; Cheri Brunsting, Appellants, v. LUTSEN MOUNTAINS CORPORATION; Lutsen Mountains Lodging Corporation, Appellees.

No. 09-1075.

United States Court of Appeals, Eighth Circuit.

Submitted: October 22, 2009.

Filed: April 13, 2010.

COPYRIGHT MATERIAL OMITTED

Thomas J. Conlin, argued, Minneapolis, MN, (Ronald A. Parsons, Jr., Steven M. Johnson, Shannon R. Falon, on the brief, Sioux Falls, SD), for appellant.

Cortney G. Sylvester, argued, Minneapolis, MN, (Peter D. Gray, Brian N. Johnson, Gregory A. Bromen, on the brief), for appellee.

Before BYE, BEAM, and SHEPHERD, Circuit Judges.

BEAM, Circuit Judge.

Keith and Cheri Brunsting¹ appeal the district court's grant of summary judgment in favor of the defendants Lutsen Mountains Corporation and Lutsen Mountains Lodging Corporation (collectively "Lutsen"), in this negligence action. We reverse the grant of summary judgment and remand the matter to the district court for further consideration.

I.

We recount the evidence in the light most favorable to Keith Brunsting. Brunsting, who worked for a printing company in Sioux Falls, South Dakota, was a 48-year-old intermediate skier who skied approximately three times per year. This case arises out of an accident that occurred on February 26, 2004, at Lutsen Mountains, a ski resort 90 miles northeast of Duluth, Minnesota. On that day, Brunsting and his friend, Trace Benson, were skiing at Lutsen, where Brunsting had skied approximately ten times before. After skiing during the morning and stopping for lunch, the pair continued skiing, taking the Timberwolf chairlift to the top of the mountain and skiing down the Alpha run. Alpha is a groomed, intermediate-level run that runs near or below the Timberwolf chairlift. After reaching the bottom, the men took the Timberwolf chairlift back to the top of the mountain.

Brunsting then proceeded down the Alpha run again, while Benson waited behind at the top of the mountain. As Brunsting made his way down, he was spotted by two off-duty Lutsen employees—Sherry Christiansen and Henry Walch—who were on the Timberwolf chairlift. They witnessed Brunsting skiing down the run, then lose control and crash headfirst into a tree near the edge of the Alpha run. There was a partially exposed tree stump near the area where Brunsting had lost control and crashed.

Shortly thereafter, Benson—who did not witness the accident—began making his way down Alpha and soon came across Brunsting lying unconscious in the snow and bleeding from the mouth. From the chairlift, Christiansen saw Benson approach Brunsting and she yelled down at him to alert him of the accident. Christiansen and Walch arrived at the scene a short time later, having alerted Lutsen personnel at the top of the mountain of the accident. At that point, according to Benson, Christiansen told him that she "saw Brunsting stumble on a stump, then fall into a tree, hitting the tree with his head."² A few moments later, a group of off-duty nurses who happened to have been skiing in the vicinity joined the scene. Because Brunsting was seriously injured and did not appear to be breathing, and looked blue, the nurses began performing CPR. They were able to get Brunsting breathing again, after which ski patrol personnel arrived and took Brunsting down the mountain for further medical attention. As a result of the brain injury Brunsting suffered that day, he has no memory of the accident or anything else about the trip to Lutsen Mountains. He is permanently disabled and is no longer able to work.

In February 2006, Brunsting brought suit in the District of South Dakota against Lutsen arguing that Lutsen was negligent in the design, maintenance, operation, and supervision of its ski facilities by failing to remove a tree stump that caused Brunsting to lose control and crash. After the case was transferred to the District of Minnesota, Lutsen filed for summary judgment on all claims, arguing that there was no admissible evidence to prove that Brunsting struck a stump before colliding with the tree, and, alternatively, that Brunsting's claim was barred by the doctrine of primary assumption of risk. Brunsting opposed the motion, relying in part on three pieces of evidence discussed by the district court: (1) circumstantial evidence that Brunsting was a cautious skier who rarely fell; (2) evidence of a mark, made by a ski, on the edge of the tree stump in question; and (3) Christiansen's statement to Benson about seeing Brunsting stumble on a stump.

Following a hearing, the district court granted Lutsen's motion for summary judgment. The court highlighted certain of Brunsting's circumstantial evidence and held that under Minnesota law there was insufficient evidence of causation to support Brunsting's negligence action. As to Christiansen's alleged statement to Benson regarding the stump, the court held it was inadmissible hearsay. The court noted that, even assuming Christiansen did in fact make the statement, the statement did not qualify as an excited utterance where it was made four to five minutes after witnessing Brunsting's fall, it was made in response to Benson's inquiry and not spontaneously, Christiansen showed no outward signs of being in an excited state when she made the statement, and Christiansen and Brunsting were strangers. Because the statement was inadmissible hearsay, it could not support Brunsting's opposition to summary judgment. Accordingly, the court granted summary judgment in favor of Lutsen.³

II.

Brunsting appeals the district court's grant of summary judgment, arguing that the district court improperly excluded Christiansen's statement regarding the cause of Brunsting's accident and that the court should have admitted the statement as an excited utterance. Brunsting further argues that even without Christiansen's utterance, he presented sufficient evidence of causation to defeat summary judgment. We address these arguments in turn.

A.

Turning first to Christiansen's alleged statement to Benson and whether it should be considered as evidence of causation upon remand, we begin with the premise that the Federal Rules of Evidence generally prohibit admissions of hearsay evidence, Federal Rules of Evidence 802, and note that inadmissible hearsay evidence cannot be used to defeat summary judgment. Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th Cir. 2005). Benson claims that at the scene he asked what happened and Christiansen told him "that she saw Brunsting stumble on a stump, then fall into a tree, hitting the tree with his head." Appellants' App. 35. Christiansen's statement to Benson, as described by Benson in his affidavit, is hearsay, as it is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). But, Brunsting argues this statement is admissible.

One well-recognized exception to the hearsay rule is found in Rule 803(2), which excepts from the hearsay rule any "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Fed.R.Evid. 803(2). At its essence, the hallmark of all exceptions to the hearsay rule is the "guarantee of trustworthiness." Miller v. Keating, 754 F.2d 507, 510 (3rd Cir.1985). The rationale behind this particular exception "derives from the teaching of experience that the stress of nervous excitement or physical shock `stills the reflective faculties,' thus removing an impediment to truthfulness." United States v. Sewell, 90 F.3d 326, 327 (8th Cir.1996) (quoting United States v. Elem, 845 F.2d 170, 174 (8th Cir.1988)). As a result, "for the excited utterance exception to apply, the declarant's condition at the time of making the statement must be such that `the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.'" Reed v. Thalacker, 198 F.3d 1058, 1061 (8th Cir.1999) (quoting United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980)).

Thus, to establish that a hearsay statement qualifies as an excited utterance, the proponent must prove three elements: "(i) that the statement was in reaction to a truly startling event; (ii) that the statement was made under the stress of excitement caused by that event; and (iii) that the statement relates to the event." Glen Weissenberger & James J. Duane, Weissenberger's Federal Evidence § 803.8 (5th ed.2006).

To determine whether a declarant was still under the stress of excitement caused by an event when a statement was made, we consider the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. We also examine whether the declarant's stress or excitement was continuous from the time of the event until the time of the statements.

United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir.2007) (internal quotations omitted). As the party attempting to show that a hearsay exception applies, Brunsting bears the burden of demonstrating that Christiansen's statement was an excited utterance. See Reed, 198 F.3d at 1061.

We note that our review of this issue is limited. Determinations as to the admissibility of evidence lie within the sound discretion of the district court, and we review those determinations under an abuse of discretion standard, even at summary judgment. Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 467 (8th Cir.2004); Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir.2001). This deferential standard recognizes that the district court has a range of choices, and its decision will not be disturbed as long as it stays within that range, is not influenced by any mistake of law or fact, and does not reflect a clear error of...