Pantano v. American Blue Ribbon Holdings
303 Neb. 156
Neb.2019Background
- Plaintiffs (estates of Arlene and Anthony Pantano) sued American Blue Ribbon Holdings, LLC (operator of a Village Inn) after Arlene tripped on an entryway rug at the restaurant and fractured her hip; both decedents later died and the estates continued the suit.
- At trial Arlene’s children testified that Arlene said she had tripped on a buckled entryway rug; Ross also testified a server said Arlene had tripped twice that morning and that the restaurant would pay medical bills.
- The jury awarded $260,000 total, found Arlene 25% negligent, and the district court entered judgment reduced to $195,000 (after the comparative negligence offset).
- American Blue Ribbon appealed, arguing among other things that the children’s testimony was inadmissible hearsay (not an excited utterance), that testimony about an offer to pay medical bills was prejudicial, and that comparative negligence instructions were erroneous.
- The Nebraska Supreme Court reviewed admissibility, prejudice, and whether there was evidence supporting liability and comparative negligence, and modified the judgment by removing the 25% reduction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Arlene’s statements as excited utterances | Statements were contemporaneous/reactive to fall and therefore admissible | Statements were not about a "startling event," not under stress, and unreliable due to Arlene’s dementia | Admissible: court found fall was startling, statements were made under stress soon after fall, dementia did not bar excited-utterance admissibility |
| Admission of server’s promise / testimony that bills were unpaid | Testimony showing promise then nonpayment was harmless and cured by jury instruction (instruction drafted by defendant) | Testimony was barred by statute (offer to pay medical expenses) and prejudicial | Admission erroneous but cured by jury instruction No. 12; no reversible error |
| Sufficiency of evidence of defendant liability (motions for SJ/DV/JNOV/new trial) | Plaintiffs: testimony (excited utterances), server’s statements, and physical evidence supported liability | Defendant: no proof of negligence; accident alone insufficient | Sufficient evidence supported liability; denials of SJ/DV/JNOV/new trial affirmed |
| Comparative negligence instruction and verdict form | Plaintiffs: no evidence Arlene was negligent; instructions/offset improper | Defendant: evidence of Arlene’s age/medical conditions allowed submission of comparative negligence | Reversed as to comparative negligence: no evidence of Arlene’s negligence; offset vacated and judgment modified to full $260,000 |
Key Cases Cited
- Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38 (discussion of appellate standards)
- TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276 (hearsay review standards)
- State v. Nolt, 298 Neb. 910 (definition and factors for excited utterance)
- Olson v. City of Omaha, 232 Neb. 428 (instructional cure for evidentiary error)
- McCune v. Neitzel, 235 Neb. 754 (nature and limits of motions in limine)
- Molt v. Lindsay Mfg. Co., 248 Neb. 81 (motions in limine do not produce final admissibility rulings)
- Doe v. Zedek, 255 Neb. 963 (denial of summary judgment not final appealable order)
- Burns v. Veterans of Foreign Wars, 231 Neb. 844 (accident alone does not prove negligence)