In Re the Marriage of: Garry A. Pistoria, petitioner, Appellant, vs. Gail Diane Pistoria, Respondent.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-1916

Tae Hwan Park, as Conservator over the Person and Estate of Ok Ja Park,

Appellant,

vs.

Jung Soo Kim, et al.,

Respondents.

Filed April 28, 1998

Reversed and remanded

Randall, Judge

Dissenting, Willis, Judge

Ramsey County District Court

File No. C7-95-8208

David L. Jensen, Jensen, Hicken & Scott, P.A., 300 Anoka Office Center, 2150 Third Avenue, Anoka, MN 55303 (for appellant)

Paul C. Peterson, William L. Davidson, Lind, Jensen & Sullivan, a Professional Association, 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondents)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges the district court's summary judgment award in this wrongful death action. We reverse and remand.

FACTS

Ok Ja Park was working at the Shilla Restaurant in St. Paul on October 15, 1993, when Sena Shin, the owner of the nearby Sena Café, came in and informed Park that Park's brother, David Ko, was intoxicated and disturbing Shin's cafe. Park went with Shin to the Sena Café, left her apartment keys with Shin's husband so that he could give them to Ko, and returned to the Shilla.

Later that evening, Park again left the Shilla. Her co-worker, Ok Soon Yu, stated in deposition that Park said that she was going to her apartment building to check on Ko. Park lived across the street from the Shilla in an apartment in a building owned by respondent Jung Soo Kim.

Park later returned to the Sena Café, complaining of a headache and that she did not feel well. She was pale, weak, and vomiting. Shin and her husband drove Park to her apartment, helped her lie down, and returned to their cafe. Park was discovered unconscious in her apartment the next day and was hospitalized as a result of a head injury until her death three years later on July 5, 1996.

Shin and her husband went to the Shilla on or about October 16, 1993, and were told by Wayne Cho that Park had been taken to the hospital. According to Cho, Shin told him that Park had told her that she (Park) had fallen down the stairway of her apartment building. According to Kyu Chul Choe, a real estate agent working with Shin and her husband, Shin told him sometime in April 1994 that Park told her that she (Park) fell down her apartment stairway. Shin denies ever making either of these statements.

Appellant brought this wrongful death action alleging Park died as a result of respondents' negligent maintenance of a stairway at their apartment building. For purposes of the summary judgment motion, respondents conceded that the rear stairway of the building was negligently maintained. The district court granted summary judgment to respondents after finding that because appellant offered no admissible evidence to prove Park fell down this particular stairway, there were not genuine issues of material fact.

D E C I S I O N

On appeal from summary judgment, the reviewing court must establish whether there are genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The appellate court must consider the evidence in the light most favorable to the party opposing summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I. Hearsay Statements

Evidence submitted to defeat a motion for summary judgment must be admissible. Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991). The district court has broad discretion in determining whether to admit evidence and a reviewing court will not disturb its evidentiary ruling unless the district court erred in applying the law or abused its discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

Appellant offered two hearsay-within-hearsay statements in support of his claim that Park fell down the steps of the apartment building owned by Kim. Appellant insists these statements are admissible under an exception to the hearsay doctrine. The district court ruled both statements were inadmissible hearsay.

A hearsay statement is a statement made at a trial or hearing by anyone other than the declarant and offered as evidence of "the truth of the matter asserted." Minn. R. Evid. 801(c). Hearsay is generally not admissible. Minn. R. Evid. 802. Hearsay within hearsay, or double hearsay, is only admissible if each part of the hearsay is admissible under a hearsay exception. Minn. R. Evid. 805.

A. Park's Statement to Shin

Appellant asserts that after Park was injured, Park told Shin that she fell down her apartment stairway. Shin denies that Park ever told her the cause of her (Park's) injury.

Appellant argues that Park's statement to Shin on October 15, 1993, is admissible as an excited utterance under Minn. R. Evid. 803(2). An exception to the rule that hearsay is inadmissible, an excited utterance must relate to a startling event or condition and be "made while the declarant was under the stress of excitement caused by the event or condition." Minn. R. Evid. 803(2).

In order to qualify as an excited utterance, the following three requirements must be met:

1. there must be a startling event or condition;

2. the statement must relate to the startling event or condition; and

3. the declarant must be under a sufficient aura of excitement caused by the event or condition to insure the trustworthiness of the statement.

* * * There can be no fixed guidelines. It is largely a matter for the trial judge to determine whether the statement was given at such a time when the aura of excitement was sufficient to insure a trustworthy statement. Rule 104(a). In reaching this decision, the judge must consider all relevant factors including the length of time elapsed, the nature of the event, the physical condition of the declarant, any possible motive to falsify, etc.

Minn. R. Evid. 803(2) 1989 comm. cmt.; see also State v. Daniels, 380 N.W.2d 777, 782-83 (Minn. 1986) (quoting Minn. R. Evid. 803(2) 1977 comm. cmt.).

The district court concluded that "[t]here [was] no evidence suggesting that Park was excited when she made the statement." However, there is no requirement, for purposes of the exception, that the statement itself be uttered in an excited manner. When Park fell down the stairway, she experienced a dramatic and traumatic event. Her statement that she fell down the stairway is easily within the rule setting the guidelines for an excited utterance. Additionally, regardless of the exact amount of time that elapsed between the time of Park's fall and her statement to Shin, there is no question that when Shin saw her, Park was suffering severe effects of her fall. See Daniels, 380 N.W.2d at 783 (stating "[l]apse of time between the startling event and the excited utterance is not always determinative"). When she spoke to Shin after her fall, Park was pale, weak, and vomiting. She was still under the shock from her fall and not in any condition to fabricate a story. See Fenton v. Minneapolis St. Ry. Co., 252 Minn. 75, 81-82, 89 N.W.2d 404, 410 (Minn. 1958) (hearsay statement admissible as excited utterance where bus passenger who aided man injured by bus testified as to statement made by man while

he was still lying on ground). Thus, Park's statement to Shin was an excited utterance, and the district court abused its discretion by concluding otherwise. 1

B. Shin's Statement to Cho

Shin and her husband went to the Shilla on or about October 16, 1993, and were told by Wayne Cho that Park had been taken to the hospital. According to Cho, Shin told him that Park told her that she (Park) had fallen down the stairway of her apartment building.

1. Excited Utterance

Appellant argues that Shin's statement to Cho is admissible as an excited utterance under Minn. R. Evid. 803(2). Appellant asserts that Shin was surprised to learn of Park's hospitalization, that Shin's statement related to the startling event of learning Park was hospitalized, and that Shin was under the aura of this excitement when she made the statement.

There is dispute over the date of this alleged statement. According to Shin's testimony, she talked to Cho and learned of Park's hospitalization the day after the accident, October 16. Cho testified in his deposition that he talked with Shin and her husband on October 17 or 18. This dispute over the exact date is irrelevant in light of the fact that, in comparing the affidavits, it is clear both Cho and Shin are referring the same conversation.

Shin stated in her deposition that she was surprised to learn Park was in the hospital. There is no evidence, however, to indicate how much time elapsed between the time Cho told Shin that Park was hospitalized and the time Shin told Cho that Park told her that she (Park) had fallen down the stairway. Even if Shin was "excited" to learn of Park's hospitalization, there is no evidence that Shin made the hearsay statement while she was still under the aura of that excitement. Thus, this statement was not an exited utterance.

2. Catchall Exception

Appellant also argues that Shin's statement to Cho falls under the catchall, or residual, exception to hearsay pursuant to Minn. R. Evid. 803(24). A statement may be admitted as a hearsay exception if it does not fall within any of the other exceptions, but it has "equivalent circumstantial guarantees of trustworthiness" and

the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn. R. Evid. 803(24). Statements that fall within a catchall exception "are not firmly rooted exceptions and are presumed unreliable and inadmissible unless supported by 'a showing of particularized guarantees of trustworthiness.'" State v. Lonergan, 505 N.W.2d 349, 354 (Minn. App. 1993) (quoting Idaho v. Wright, 497 U.S. 805, 816, 110 S. Ct. 3139, 3147 (1990)), review denied (Minn. Oct. 19, 1993). The totality of the circumstances determines a statement's trustworthiness. Id. In considering trustworthiness, the court may consider the time lapse between the statement and the incident, whether the statement was made under oath, whether the declarant was subject to cross-examination, and whether the statement was based on firsthand knowledge. State v. Hansen, 312 N.W.2d 96, 102 (Minn. 1981).

As appellant notes, there are circumstantial guarantees of trustworthiness in this statement. There was no reason for Shin to fabricate this statement. Shin's statement was an acknowledgement that she knew Park was seriously injured, and because this statement is adverse to Shin's interest in another action, it is similar to a party admission. Further, although this statement was not an excited utterance, it was made during the same conversation in which Shin learned that Park had been hospitalized, and there was little time for Shin to reflect on the consequences of her statement.

This statement would be offered to provide evidence of a material fact, the cause of Park's injury. There is no other evidence available to prove exactly how or where Park was injured, and, therefore, this is the most probative evidence. Admitting this evidence would serve the interests of justice. Without this evidence, appellant could be without a remedy. Thus, the statement from Shin to Cho falls within the catchall exception to hearsay under Minn. R. Evid. 803 (24).

Park's statement to Shin is admissible as an excited utterance. Shin's reiteration of this statement to Cho falls under the residual exception to the hearsay doctrine. Because both levels of the hearsay-within-hearsay statement to Cho fall under a hearsay exception, the statement is admissible. See Minn. R. Evid. 805 (requiring both levels of hearsay to be admissible). We conclude the district court erred by ruling that this hearsay-within-hearsay statement was inadmissible.

C. Shin's Statement to Choe

According to the deposition testimony of Kyu Chul Choe, Shin told him during a conversation in April 1994 that Park told her that she (Park) fell down her apartment stairway. Appellant argues that Shin's statement to Choe is admissible under the catchall exception to hearsay, Minn. R. Evid. 803(24).

This statement would be offered as evidence of a material fact, but because we have concluded that the statement to Wayne Cho is admissible, the statement to Choe would not be the only evidence available to prove the cause of Park's injury. Thus, the interests of justice do not require admission of this statement. Further, there are no circumstantial guarantees of trustworthiness here. This statement was allegedly made six months after the accident. Shin was not under oath or subject to cross-examination when she made this statement, and she had no firsthand knowledge of how Park was injured. Therefore, the district court did not abuse its discretion by determining that the statement from Shin to Choe was not admissible under the catchall exception to the hearsay doctrine.

Circumstantial Evidence

Appellant argues that regardless of whether the hearsay statements are admissible, he has provided sufficient circumstantial evidence demonstrating that Park's injury was caused by a fall down her apartment building's rear stairway. He asserts that because the cause of Park's injury may be proven by circumstantial evidence, genuine issues of material fact exist, and the district court erred in granting summary judgment. We agree.

Negligence may be established by circumstantial evidence alone "as long as the evidence does not equally sustain any other theory." Bethesda Lutheran Church v. Twin City Constr. Co., 356 N.W.2d 344, 348 (Minn. App. 1984), review denied (Minn. Feb. 5, 1985). But circumstantial evidence must provide "a reasonable basis for supporting an inference by the jury of the ultimate fact that the defendant's negligence caused the plaintiff harm." Canada By & Through Landy v. McCarthy, 567 N.W.2d 496, 506 (Minn. 1997).

"'[I]nferences must necessarily be drawn from circumstantial evidence. The inferences must, nevertheless, be reasonably supported by the available evidence; sheer speculation is not enough, and the inference of negligent causation must outweigh contrary inferences.'"

Illinois Farmers Ins. Co. v. Brekke Fireplace Shoppe, Inc., 495 N.W.2d 216, 221 (Minn. App. 1993) (quoting Rochester Wood Specialties, Inc. v. Rions, 286 Minn. 503, 509, 176 N.W.2d 548, 552 (1970) (quoting Raymond v. Baehr, 282 Minn. 102, 104, n.2, 163 N.W.2d 54, 55 n.2 (1968))).

Park was in good health when she left the Shilla Restaurant for the final time on October 15, 1993. She informed a co-worker that she was going to check on her brother at her apartment. She did not have the keys to the front entrance of her apartment building because she had given them to the Shins, and the only other entrance to the building is the rear stairway. When she returned to the Sena Café, she asked the whereabouts of her brother; she complained of feeling ill and having a headache; and she was pale, weak, and vomiting. Further, Dr. Awasthi, the treating neurosurgeon, submitted a letter, attached to an affidavit, stating that it was his opinion that Park's injury was most likely caused by a fall. Appellant also notes the negligent maintenance of this stairway, as conceded by respondents, for summary judgment purposes.

There are different pieces of circumstantial evidence here. All of these pieces are consistent with a fall down a stairway. Because we conclude that the hearsay-within-hearsay statement to Cho is admissible, there is additional evidence to support this theory. We make no comment as to whether this case will survive a motion for a directed verdict after all the evidence is submitted. That issue is not before the court and is a trial court decision for later, depending on the record at that time. But we conclude that the district court erred by determining that the present evidence did not create a genuine issue of material fact as to the cause of Park's injury and subsequent death. This case should move on through the discovery stage and toward trial.

Reversed and remanded.

WILLIS, Judge (Dissenting)

I respectfully dissent. I agree with the majority that (1) the statement of Ok Ja Park to Sena Shin was an excited utterance; (2) Shin's statement to Wayne Cho was not an excited utterance; and (3) Shin's statement to Kyu Chul Choe is not admissible under the residual exception to the hearsay doctrine. But I disagree with the majority's conclusion that Shin's statement to Wayne Cho falls within the residual exception to hearsay under Minn. R. Evid. 803(24).

I find no basis to distinguish Shin's statement to Wayne Cho from Shin's statement to Kyu Chul Choe. In both cases, Shin was not under oath, she was not subject to cross-examination when she made the statement, and she had no firsthand knowledge of how Park was injured. I therefore conclude that the statement from Shin to Wayne Cho does not fall within the residual exception to hearsay because it lacks circumstantial guarantees of trustworthiness.

Without the hearsay-within-hearsay statements offered by appellant, the circumstantial evidence does not create a genuine issue of material fact as to the cause of Park's injury and subsequent death.

I would affirm the district court.