Lieb v. County of WestchesterLieb v. County of Westchester
— In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Coppola, J.), entered July 6, 1989, which, upon a jury verdict, is in favor of the defendants the County of Westchester and Mount Kisco Bus Line, Inc., dismissing the complaint.
Ordered that the judgment is reversed, on the law, and a new trial is granted to the plaintiff against the defendants the County of Westchester and Mount Kisco Bus Line, Inc., with costs to abide the event.
On the morning of August 2, 1985, the plaintiff was a passenger on a bus operated by the defendant Walter Huston, an employee of Mount Kisco Bus Line, Inc. It was a cloudy
Immediately after the collision, the bus driver requested the passengers to move to the back of the bus and wait for the police to arrive. He then exited the bus, and approached Casablanca to find out whether he had been injured. During the course of his conversation with Casablanca, the bus driver indicated that a brown car had "cut him off”, causing the accident. Following the driver’s conversation with Casablanca, police arrived at the scene and began talking to the bus passengers. At this point, the bus driver approached one of the passengers, Matthew Hart, and asked him whether he had seen a car cut him off. According to Hart, the bus driver then asked him to "back up” this claim, explaining "I’ve been in several accidents before and I’ll lose my job”.
The respondents asserted that the bus driver was free from negligence because an unidentified car had cut him off, forcing him to change lanes in an effort to avoid a collision. Since the bus driver died prior to the trial, the primary evidence offered in support of this defense was Casablanca’s testimony at an examination before trial that the bus driver had told him that a brown car cut him off, which the court admitted into evidence, over objection, under the excited utterance exception to the hearsay rule. The court similarly permitted Hart to testify that the bus driver had told him that he had been cut off, but instructed the jury to disregard that portion of the bus driver’s statement which indicated that he had been involved in previous accidents. At the conclusion of the trial, the jury returned a verdict in favor of the respondents, and this appeal ensued.
On appeal the plaintiff contends the Supreme Court erred in admitting the bus driver’s hearsay statement that a brown car had cut him off. We agree. The rule prohibiting the admission of hearsay has been described as the "best known feature of Anglo-American law” (People v Caviness,
One of the long recognized exceptions to the hearsay rule permits the admission of excited utterances, which are made under the stress of the moment without time for reflection or deliberation (see, Deutsch v Horizon Leasing Corp.,
Applying these principles at bar, we find that the respondents failed to meet their burden of establishing that the bus driver’s hearsay explanation for the accident was admissible as an excited utterance (see, People v Norton, supra; People v Nieves, supra). Contrary to the defendants’ contention, the fact that the bus driver’s statement to Casablanca was made while the driver was still at the scene of the accident does not, standing alone, establish that the statement was made under the stress of excitement caused by the accident. In this regard, we note that those portions of Casablanca’s prior testimony which were offered into evidence at the trial contain no indication of the bus driver’s demeanor or emotional state at the time he offered Casablanca his explanation for the accident. Moreover, the defense’s claim that the bus driver’s statement was not the result of studied reflection is undercut
We have reviewed the plaintiffs remaining contentions, and find that they are without merit. Thompson, J. P., Eiber, Balletta and O’Brien, JJ., concur.