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JANUARY 30, 2004; 2:00 p.m. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2003-CA-000490-MR

DEBRA GIBSON, AS PERSONAL REPRESENTATIVE AND ADMINISTRATRIX OF THE ESTATE OF EDITH HARRIS

APPELLANT

v.

APPEAL FROM WHITLEY CIRCUIT COURT HONORABLE JERRY D. WINCHESTER, JUDGE ACTION NO. 98-CI-00339

ROB LEATH, INDIVIDUALLY; AND BAPTIST HEALTHCARE SYSTEMS, INC. D/B/A BAPTIST REGIONAL MEDICAL CENTER

APPELLEES

OPINION AFFIRMING

** ** ** ** ** BEFORE: GUIDUGLI, McANULTY AND MINTON, JUDGES. Debra Gibson, as Personal Representative and

GUIDUGLI, JUDGE.

Administratrix of the Estate of Edith Harris, (hereinafter "Gibson") has appealed from the Whitley Circuit Court's Summary Judgment entered March 3, 2003, following the entry of the November 19, 2002, order granting a motion to exclude testimony

as hearsay.

The sole issue on appeal is whether the testimony

of two witnesses as to statements attributed to Ethel Harris, now deceased,1 comes within the excited utterance exception to the hearsay rule. We affirm.

On June 12, 1998, Gibson filed a complaint in Whitley Circuit Court against Baptist Healthcare Systems, Inc., d/b/a Baptist Regional Medical Center (hereinafter "BRMC"), BRMC employee Rob Leath (hereinafter "Leath") and unknown aids, alleging that her mother, Edith Harris (hereinafter "Edith"), was injured on July 19, 1997, while she was a patient in the rehabilitation unit of BRMC. Edith was admitted to BRMC on June

12, 1997, to receive rehabilitation from a prior hip fracture. According to the complaint, Edith was injured when Leath and an unknown aid recklessly, carelessly, negligently, and/or grossly negligently fractured two of her ribs when they threw her into her hospital bed and then continued with daily physical therapy despite her complaints of pain. Furthermore, Gibson alleged

that the conduct complained of demonstrated a wanton and willful disregard for Edith's rights and safety, thereby entitling her to punitive damages. Gibson demanded medical expenses; damages

for Edith's emotional and physical pain and suffering from July 19, 1997, through March 22, 1998; and punitive damages.

1

Edith passed away on March 22, 1998, but her death was not related to the subject of her lawsuit.

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Extensive discovery ensued, and a trial was eventually scheduled for October 10, 2002.2 On July 30, 2002, the defendants filed a motion in limine to exclude the testimony of two witnesses as inadmissible hearsay pursuant to KRE 802. The trial court ruled that the

motion was prematurely made by order entered September 6, 2002, and indicated that the motion should be brought at trial. defendants' motion for a partial summary judgment was also denied by the September 6, 2002, order. On October 2, 2002, the The

defendants filed another motion for summary judgment as well as a motion in limine, again to prohibit the use of hearsay testimony of Charlotte Harris and Harold Harris (hereinafter "Charlotte" and "Harold"). The trial court entertained Gibson argued

arguments on October 10, 2002, the day of trial.

that Edith's statement to Leath, in the presence of Charlotte and Harold, that he had broken her ribs by dropping her into her bed constituted an excited utterance and was therefore admissible through the hearsay testimony of Charlotte and Harold. The trial court determined that Edith's statement did

not fall into the category of an excited utterance and excluded the testimony in question. An order memorializing this ruling The trial court then entered a

was entered November 19, 2002.
2

Prior to the trial, the parties entered into a stipulation that there was no evidence that Edith had fractured ribs upon her admission to BRMC and that she did have fractured ribs upon her discharge. The parties did not enter into a stipulation as to the causation of the rib fractures.

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summary judgment for the defendants on March 3, 2003, upon Gibson's admission that she probably could not sustain her burden of proof regarding causation to defeat a motion for directed verdict without the excluded testimony. followed. On appeal, Gibson argues that the trial court erred in excluding the testimony of Charlotte and Harold because it fell within the excited utterance exception to the hearsay rule based upon the totality of the circumstances.3 On the other hand, BRMC This appeal

and Leath argue that the trial court properly excluded the testimony in question as the statements attributed to Edith did not constitute an excited utterance, in particular because there were numerous reasons to doubt the validity of those statements. KRE 801(c) defines hearsay as "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." Pursuant to KRE 802, "[h]earsay is not admissible

except as provided by these rules or by rules of the Supreme Court of Kentucky." One of these exceptions is for an excited

utterance, which is defined by KRE 803(2) as "[a] statement relating to a startling event or condition made while the

3

Although Gibson argued below that the statements were admissible under several exceptions to the rule against hearsay, she only argues to this Court that the excited utterance exception applies. Therefore, we shall confine our review to that exception only.

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declarant was under the stress of excitement caused by the event or condition." In Souder v. Commonwealth, Ky., 719 S.W.2d 730 (1986), the Supreme Court of Kentucky adopted as a general rule Professor Lawson's definition of a spontaneous statement and when such spontaneous statements should be considered exceptions to the hearsay rule. Lawson cited to Souder in the latest

version of his Kentucky Evidence Law Handbook as follows: A spontaneous statement is one uttered under the stress of nervous excitement and not after reflection or deliberation. Whether or not a given statement is "spontaneous" depends upon an evaluation of the particular circumstances under which it was made, with the following circumstances most significant: (i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving. Lawson, The Kentucky Evidence Law Handbook

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