Estate of Phillips v. Andover Senior Care, LLC

Decision Date05 November 2021
Docket Number312,122
PartiesEstate of Edna Phillips, by and through its duly appointed executor Steven Phillips, and Steven Phillips, John Phillips, and Judy Fugit, Heirs at Law of Edna Phillips, Appellants, v. Andover Senior Care, LLC, d/b/a Victoria Falls and d/b/a Victoria Falls Assisted Living, Appellee.
CourtCourt of Appeals of Kansas

Estate of Edna Phillips, by and through its duly appointed executor Steven Phillips, and Steven Phillips, John Phillips, and Judy Fugit, Heirs at Law of Edna Phillips, Appellants,
v.
Andover Senior Care, LLC, d/b/a Victoria Falls and d/b/a Victoria Falls Assisted Living, Appellee.

No. 122, 312

Court of Appeals of Kansas

November 5, 2021


NOT DESIGNATED FOR PUBLICATION

Appeal from Butler District Court; Michael E. Ward, judge.

Melinda G. Young, of Melinda Young Law, LLC, of Hutchinson, for appellants.

Matthew A. Spahn, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.

Before Powell, P.J., Bruns, J., and Steve Leben, Court of Appeals Judge Retired, assigned.

MEMORANDUM OPINION

LEBEN, J.

Suffering from dementia, Edna Phillips moved to a nursing home where facility staff could help to keep her safe. But she walked out of the facility, apparently unnoticed, fell on an uneven sidewalk, and broke her hip. She died five days later.

Mrs. Phillips' estate sued the nursing home, owned by Andover Senior Care, LLC, for the failure to keep Mrs. Phillips from heading outside on her own. But a key piece of

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evidence was excluded at trial. That evidence was her son's testimony that the on-call nurse had told him by phone the day Edna fell that she had gotten away unsupervised because both staffers who could have prevented it left for lunch at the same time. The district court excluded that evidence under the rules precluding hearsay testimony.

But the hearsay rules have lots of exceptions, and one of them applied here: the testimony should have been allowed as an admission of a party opponent made by the nursing home's on-call nurse. Because this evidence was central to the plaintiff's case and not presented to the jury, we set aside the judgment entered for the defendant and remand the case for a new trial.

The parties presented extensive evidence in a seven-day jury trial. We will review only the evidence central to the legal issues raised on appeal.

Mrs. Phillips' estate, the plaintiff in this lawsuit, wanted to present her son's testimony that a nurse had called him from the nursing home the day his mother fell. Her son, Steven, would have testified that when he asked the nurse "how [his mother] got out," he "was informed that out of the three staff on duty, two had [gone] to lunch and left the doors unattended."

The district court correctly held that this was testimony about a hearsay statement. Hearsay is a statement, presented to show the truth of what was said, made by someone other than the witness who is testifying. See K.S.A. 2020 Supp. 60-460. But lots of hearsay statements are admissible because there are many specific provisions allowing them into evidence.

Andover Senior Care emphasized at trial and notes again on appeal that its records didn't show that this statement was made. The district court relied on that as one basis for its initial rejection of the testimony, sustaining the hearsay objection and stating that "if

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this witness is about to...

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