1

Although Keith Brunsting's claims sound in negligence, his wife, Cheri

Brunsting, brought a claim for loss of consortium. Her claim was derivative, see

Huffer v. Kozitza, 375 N.W.2d 480, 482 (Minn. 1985), and was also disposed of at

summary judgment. Because Cheri Brunsting's claim derives entirely from her

husband's claim, we refer only to Keith Brunsting in our discussion.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1075

___________

Keith Brunsting; Cheri Brunsting, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Lutsen Mountains Corporation; Lutsen *

Mountains Lodging Corporation, *

*

Appellees. *

___________

Submitted: October 22, 2009

Filed: April 13, 2010

___________

Before BYE, BEAM, and SHEPHERD, Circuit Judges.

___________

BEAM, Circuit Judge.

 Keith and Cheri Brunsting1

 appeal the district court's grant of summary

judgment in favor of the defendants Lutsen Mountains Corporation and Lutsen

Mountains Lodging Corporation (collectively "Lutsen"), in this negligence action.
-2-

We reverse the grant of summary judgment and remand the matter to the district court

for further consideration.

I.

We recount the evidence in the light most favorable to Keith Brunsting.

Brunsting, who worked for a printing company in Sioux Falls, South Dakota, was a

48-year-old intermediate skier who skied approximately three times per year. This

case arises out of an accident that occurred on February 26, 2004, at Lutsen

Mountains, a ski resort 90 miles northeast of Duluth, Minnesota. On that day,

Brunsting and his friend, Trace Benson, were skiing at Lutsen, where Brunsting had

skied approximately ten times before. After skiing during the morning and stopping

for lunch, the pair continued skiing, taking the Timberwolf chairlift to the top of the

mountain and skiing down the Alpha run. Alpha is a groomed, intermediate-level run

that runs near or below the Timberwolf chairlift. After reaching the bottom, the men

took the Timberwolf chairlift back to the top of the mountain.

Brunsting then proceeded down the Alpha run again, while Benson waited

behind at the top of the mountain. As Brunsting made his way down, he was spotted

by two off-duty Lutsen employees—Sherry Christiansen and Henry Walch—who

were on the Timberwolf chairlift. They witnessed Brunsting skiing down the run, then

lose control and crash headfirst into a tree near the edge of the Alpha run. There was

a partially exposed tree stump near the area where Brunsting had lost control and

crashed. 

Shortly thereafter, Benson—who did not witness the accident—began making

his way down Alpha and soon came across Brunsting lying unconscious in the snow

and bleeding from the mouth. From the chairlift, Christiansen saw Benson approach

Brunsting and she yelled down at him to alert him of the accident. Christiansen and

Walch arrived at the scene a short time later, having alerted Lutsen personnel at the
2

Christiansen's first written account comports with this alleged statement at the

scene. This written account, completed shortly after the accident, specifically

referenced the "exposed tree stump" and stated that "[i]t 'seems' like some part of the

terrain may have caused him to lose control like that." Appellants' App. 114-15. But,

Christiansen later distanced herself from her statement to Benson and her mention of

the stump in the first written account. Two months later, she opined in a second

written statement meant to "clear up" the written statement she gave the day of the

accident, that "[f]rom my recollection the skier didn't hit either the stump or the berm

or anything that appeared to be part of the terrain that would have caused him to lose

control," and that she was "sure he didn't take a path over [the stump and berm.]"

Appellants' App. 117-19. Four years later, her deposition testimony was firmer still,

stating:

It didn't seem like he should even hit the tree, because he didn't look like

he was having any trouble at all. That's why it looks like a cartoon, that's

why I describe it that way. . . . Almost like it was intentional, you know,

what I mean, you picture like a silly cartoon, like they ski right into a

tree, and boop, you know.

Appellants' App. 91. 

-3-

top of the mountain of the accident. At that point, according to Benson, Christiansen

told him that she "saw [Brunsting] stumble on a stump, then fall into a tree, hitting the

tree with his head."2

 A few moments later, a group of off-duty nurses who happened

to have been skiing in the vicinity joined the scene. Because Brunsting was seriously

injured and did not appear to be breathing, and looked blue, the nurses began

performing CPR. They were able to get Brunsting breathing again, after which ski

patrol personnel arrived and took Brunsting down the mountain for further medical

attention. As a result of the brain injury Brunsting suffered that day, he has no

memory of the accident or anything else about the trip to Lutsen Mountains. He is

permanently disabled and is no longer able to work.

In February 2006, Brunsting brought suit in the District of South Dakota against

Lutsen arguing that Lutsen was negligent in the design, maintenance, operation, and
3

Lutsen also argued that the doctrine of primary assumption of risk operated to

bar Brunsting's claim. Because the district court granted summary judgment based on

a lack of evidence demonstrating causation, it declined to rule on Lutsen's assumption

of risk argument. "[W]e do not usually address issues that have not been considered

by a district court[,]" Cavegn v. Twin City Pipe Trades Pension Plan, 223 F.3d 827,

831 (8th Cir. 2000), thus we also decline to address Lutsen's assumption of risk

argument. 

-4-

supervision of its ski facilities by failing to remove a tree stump that caused Brunsting

to lose control and crash. After the case was transferred to the District of Minnesota,

Lutsen filed for summary judgment on all claims, arguing that there was no admissible

evidence to prove that Brunsting struck a stump before colliding with the tree, and,

alternatively, that Brunsting's claim was barred by the doctrine of primary assumption

of risk. Brunsting opposed the motion, relying in part on three pieces of evidence

discussed by the district court: (1) circumstantial evidence that Brunsting was a

cautious skier who rarely fell; (2) evidence of a mark, made by a ski, on the edge of

the tree stump in question; and (3) Christiansen's statement to Benson about seeing

Brunsting stumble on a stump. 

Following a hearing, the district court granted Lutsen's motion for summary

judgment. The court highlighted certain of Brunsting's circumstantial evidence and

held that under Minnesota law there was insufficient evidence of causation to support

Brunsting's negligence action. As to Christiansen's alleged statement to Benson

regarding the stump, the court held it was inadmissible hearsay. The court noted that,

even assuming Christiansen did in fact make the statement, the statement did not

qualify as an excited utterance where it was made four to five minutes after witnessing

Brunsting's fall, it was made in response to Benson's inquiry and not spontaneously,

Christiansen showed no outward signs of being in an excited state when she made the

statement, and Christiansen and Brunsting were strangers. Because the statement was

inadmissible hearsay, it could not support Brunsting's opposition to summary

judgment. Accordingly, the court granted summary judgment in favor of Lutsen.3
-5-

II.

Brunsting appeals the district court's grant of summary judgment, arguing that

the district court improperly excluded Christiansen's statement regarding the cause of

Brunsting's accident and that the court should have admitted the statement as an

excited utterance. Brunsting further argues that even without Christiansen's utterance,

he presented sufficient evidence of causation to defeat summary judgment. We

address these arguments in turn. 

A.

Turning first to Christiansen's alleged statement to Benson and whether it

should be considered as evidence of causation upon remand, we begin with the

premise that the Federal Rules of Evidence generally prohibit admissions of hearsay

evidence, Federal Rules of Evidence 802, and note that inadmissible hearsay evidence

cannot be used to defeat summary judgment. Brooks v. Tri-Systems, Inc., 425 F.3d

1109, 1111 (8th Cir. 2005). Benson claims that at the scene he asked what happened

and Christiansen told him "that she saw [Brunsting] stumble on a stump, then fall into

a tree, hitting the tree with his head." Appellants' App. 35. Christiansen's statement

to Benson, as described by Benson in his affidavit, is hearsay, as it is "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." Fed. R. Evid. 801(c). But,

Brunsting argues this statement is admissible. 

One well-recognized exception to the hearsay rule is found in Rule 803(2),

which excepts from the hearsay rule any "statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the

event or condition." Fed. R. Evid. 803(2). At its essence, the hallmark of all

exceptions to the hearsay rule is the "guarantee of trustworthiness." Miller v. Keating,

754 F.2d 507, 510 (3rd Cir. 1985). The rationale behind this particular exception
-6-

"derives from the teaching of experience that the stress of nervous excitement or

physical shock 'stills the reflective faculties,' thus removing an impediment to

truthfulness." United States v. Sewell, 90 F.3d 326, 327 (8th Cir. 1996) (quoting

United States v. Elem, 845 F.2d 170, 174 (8th Cir. 1988)). As a result, "[f]or the

excited utterance exception to apply, the declarant's condition at the time of making

the statement must be such that 'the statement was spontaneous, excited or impulsive

rather than the product of reflection and deliberation.'" Reed v. Thalacker, 198 F.3d

1058, 1061 (8th Cir. 1999) (quoting United States v. Iron Shell, 633 F.2d 77, 86 (8th

Cir. 1980)). 

Thus, to establish that a hearsay statement qualifies as an excited utterance, the

proponent must prove three elements: "(i) that the statement was in reaction to a truly

startling event; (ii) that the statement was made under the stress of excitement caused

by that event; and (iii) that the statement relates to the event." Glen Weissenberger

& James J. Duane, Weissenberger's Federal Evidence § 803.8 (5th ed. 2006). 

To determine whether a declarant was still under the stress of excitement

caused by an event when a statement was made, we consider the lapse of

time between the startling event and the statement, whether the statement

was made in response to an inquiry, the age of the declarant, the physical

and mental condition of the declarant, the characteristics of the event,

and the subject matter of the statement. We also examine whether the

declarant's stress or excitement was continuous from the time of the

event until the time of the statements.

United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007) (internal quotations

omitted). As the party attempting to show that a hearsay exception applies, Brunsting

bears the burden of demonstrating that Christiansen's statement was an excited

utterance. See Reed, 198 F.3d at 1061.

We note that our review of this issue is limited. Determinations as to the

admissibility of evidence lie within the sound discretion of the district court, and we
-7-

review those determinations under an abuse of discretion standard, even at summary

judgment. Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 467 (8th Cir.

2004); Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001). This deferential

standard recognizes that the district court has a range of choices, and its decision will

not be disturbed as long as it stays within that range, is not influenced by any mistake

of law or fact, and does not reflect a clear error of judgment in balancing relevant

factors. Walker v. Bonenberger, 438 F.3d 884, 890 (8th Cir. 2006); see also United

States v. Bailey, 571 F.3d 791, 804 (8th Cir. 2009) ("A district court abuses its

discretion when it bases its decision on a legal error or a clearly erroneous finding of

fact.") (quotation omitted); United States v. Boswell, 270 F.3d 1200, 1204 (8th Cir.

2001) ("This court must determine whether or not the district court made a clear error

of judgment in weighing the facts on the basis of the record before it.").

Here, we find the district court abused its discretion on two fronts: in its

analysis of whether Christiansen's statement was made in reaction to a truly startling

event, and whether the statement was made under the stress of excitement caused by

that event. As to the first element regarding the existence of a truly startling event,

perhaps the error of the district court is best articulated as its failure to identify the

entirety of the "event" for purposes of the Rule 803(2) discussion. The court seems

to have truncated the event, limiting its discussion of Christiansen's statement relative

only to the singular event of Christiansen's witnessing of Brunsting's impact with the

tree. For example, the court discusses the "four to five minutes" between the accident

and Christiansen's statement to Benson, necessarily implying that the "startling event"

occurred on the chairlift. Limiting the discussion in that manner was an abuse of

discretion. It was the whole of the event that is relevant for purposes of the Rule

803(2) analysis: witnessing a near-fatal traumatic accident from the chairlift and

immediately rushing to the scene where Brunsting was unconscious, bleeding from

the mouth, turning blue and believed to be near death, as others tried to stabilize him

until medical assistance arrived. It was a chaotic scene and Christiansen realized the

gravity of the accident–that she might indeed be witnessing a man's death. The
-8-

difference between the two definitions of what constitutes the "event" for purposes of

the Rule 803(2) analysis is pivotal, as there was little or no time lapse between the

latter-defined "event" and the statement at issue because the statement was made

contemporaneously with the singular startling event. 

The court further erred in its conclusion that "Brunsting provides no evidence

that Christiansen in particular was in an extremely alarmed condition at the time the

statement was made beyond . . . generalized observations regarding the group's

demeanor." Brunsting, Civ. No. 07-4192, slip op. at 8. In doing so, the court rejected

one of Brunsting's arguments that because Christiansen was "panicked and anxious"

when she skied down the hill from the accident area, she must have been in an excited

state at the scene. The court responded that "Christiansen's fear for her own safety

when skiing down the hill does not indicate that her prior statement was made in an

excited state without reflection or deliberation." Id. at 8-9 n.8. These cabined

findings defy the myriad evidence presented in the record.

 

Curiously, in its analysis on this point, the district court relied almost

exclusively on Benson's affidavit, when Christiansen's own deposition testimony on

the matter is most illustrative of her then-current state of mind. According to her own

testimony, after seeing Brunsting hit the tree from her chairlift, Christiansen traveled

the "little bit" to get to the top (although "it seemed like a long time"), "immediately

waved down the person in the lift shack," and notified them of the accident so that

they could call for help because "it's bad, it's got to be bad." Appellants' App. 89.

Christiansen testified that she was "just frantic." Id. She and her skiing partner then

traveled to the scene and took their skis off. Id. Christiansen was "afraid" to go near

Brunsting (she was "scared" to get close) and was relieved when the three other

women arrived, who she later learned were nurses. Id. at 89, 91. Christiansen

"thought, well this is–this is good, because they can take over. I was sort of panicked

and wasn't sure what I was going to do anyway." Id. at 89. She remembers the

women "saying, he looks so blue, he looks so blue. And I was just thinking, oh–oh
-9-

my gosh, I just saw someone die today." Id. at 94. Christiansen recalls that waiting

for the ski patrol to arrive "seem[ed] like an eternity" because they were "waiting for

someone to come and save someone's life." Id. at 105. After the ski patrol removed

Brunsting, Christiansen herself skied down "really slow." Id. at 94. She

"remember[s] just being so nervous . . . [and was] so panicked and anxious from what

had just happened that [she] just felt shaky, so [she] went really, really slow." Id.

Christiansen does not remember traveling on the ski lift again herself just after the

accident as she made her way off the mountain, nor does she remember if she had to

work that day. Id. at 95. She "was just wanting to get off of the ski hill," and

remembers going "down to the bar and [having] a beer just to try and relax." Id.

Indeed, the entire incident "haunted" Christiansen so much that she recalls skiing only

one more time after that. Id. at 107. This evidence establishes that Christiansen was

still under the stress of excitement from the event when the statement was made. 

Finally, there are other relevant factors that the district court failed to balance

in the excited utterance equation. First, Christiansen's status as an employee of Lutsen

bolsters the conclusion that her immediate statements were not the product of

reflective thought. We readily acknowledge that the discussion today does not

involve admissions by a party-opponent admissible under Rule 801(d)(2), but the

relationship is still notable in our analysis of whether Christiansen was under the

stress of excitement caused by the accident. That an employee of Lutsen would

spontaneously make such an inculpatory statement buttresses the conclusion that it

was not the product of reflection and deliberation. Too, the inconsistencies between

the statements Christiansen made at the scene and in her first written statement given

the day of the accident; and the statements she provided two months and four years

later, respectively, under the tutelage of the Lutsen people and counsel (necessarily

the product of greater reflection and deliberation), enhance the veracity and credibility

of the statements she made the day of the accident. At the very least, this suspect

change of tune must give us pause in our consideration. The consistency of the

separate statements made the day of the accident gives credence to the fact that they
-10-

were given without reflection or deliberation under the stress and excitement of the

event. The district court abused its discretion in only crediting Christiansen's later

statements and failing to balance these factors in its analysis. 

Reviewing the evidence in light of the elements required to support an excited

utterance finding under Rule 803(2), Christiansen's own deposition evidence clearly

indicates that when Christiansen arrived at Brunsting's side after witnessing his

traumatic injury, saw his grave and disturbing medical condition, and made the

statements that Benson testified under oath that she made, she was "under the stress

of excitement caused by the event or condition." Fed. R. Evid. 803(2). In light of this

evidence, and viewing the "event" at issue through the appropriate lens, we cannot

hold that the district court chose from merely two permissible views of the evidence,

or range of choices, but rather erred in its analysis as only one conclusion is apparent.

Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir. 2004). The district court abused

its discretion in its determination that Christiansen's statement to Benson was

inadmissible hearsay. It should be included in the evidentiary record upon remand as

an excited utterance under Rule 803(2). 

B.

As to the district court's determination regarding causation, we review a district

court's grant of summary judgment de novo, viewing the evidence in the light most

favorable to the nonmoving party. Moore v. Indehar, 514 F.3d 756, 761 (8th Cir.

2008). We will affirm the grant of summary judgment if "there is no genuine issue

as to any material fact and . . . the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing a lack of

genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However,

the nonmoving party "may not rest upon mere allegation or denials of his pleading,

but must set forth specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A mere "scintilla of
4

The district court based its grant of summary judgment on its discussion of

causation, not whether Lutsen breached its duty. As such, our analysis is equally

limited today. The precise question here is the existence, or not, of a genuine issue

of material fact on whether Lutsen's failure to remove the stump was a proximate

cause of Brunsting's accident.

5

Although we speak in terms of proximate cause, Minnesota courts have made

clear that proximate cause analysis also includes questions of factual, or but-for,

causation. George v. Estate of Baker, 724 N.W.2d 1, 10-11 (Minn. 2006).

-11-

evidence" is insufficient to defeat summary judgment, id. at 252, and if a nonmoving

party who has the burden of persuasion at trial does not present sufficient evidence as

to any element of the cause of action, then summary judgment is appropriate. Id. at

256. 

In a diversity action such as this, we apply state substantive law. Gylten v.

Swalboski, 246 F.3d 1139, 1141 (8th Cir. 2001). To prevail on a negligence claim

under Minnesota law, Brunsting must prove: (1) that Lutsen had a legal duty to

Brunsting to take some action; (2) that Lutsen breached that duty;4

 (3) that the breach

of that duty was the proximate cause5

 of Brunsting's harm; and (4) damage. Id. (citing

Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999)). Proximate cause exists

if "the negligent conduct was a substantial factor in bringing about the injury." Lietz

v. N. States Power Co., 718 N.W.2d 865, 872 (Minn. 2006); see also Restatement

(Second) of Torts § 431 (1965) (discussing the "substantial factor" test of proximate

causation). 

Generally, proximate cause is a question of fact for the jury. Canada v.

McCarthy, 567 N.W.2d 496, 506 (Minn. 1997). "However, when reasonable minds

could reach only one conclusion, the existence [or not] of proximate cause is a

question of law." Id.; see also Smith v. Kahler Corp., 211 N.W.2d 146, 151 (Minn.

1973) ("[C]ausation, like negligence itself, is a fact issue for the jury except when the

facts are undisputed and are reasonably susceptible of but one inference."). To
6

Later in his deposition, Walch clarified that he was referring to a rut or divot

in the snow, not a tree root. Appellees' Separate App. 79. 

-12-

establish proximate cause, a plaintiff need not rely solely on direct evidence, but

"circumstantial evidence must be consistent to the extent that it furnishes a reasonable

basis for supporting an inference by the jury of the ultimate fact that the defendant's

negligence caused the plaintiff harm." McCarthy, 567 N.W.2d at 506. "A mere

possibility of such causation is not enough" to establish proximate cause. DeCourcy

v. Trs. of Westminster Presbyterian Church, Inc., 134 N.W.2d 326, 328 (Minn. 1965).

Apart from the hearsay testimony discussed above, Brunsting offered

circumstantial evidence to prove that the tree stump was the cause of the accident.

The district court identified only two pieces of circumstantial evidence. First, that

Brunsting "was an intermediate skier who was cautious, rarely fell," and was "skiing

safely" that day. Brunsting v. Lutsen Mountains Corp., Civ. No. 07-4192, slip op. at

5 (D. Minn. Dec. 30, 2008) (quotation omitted). Second, Benson noticed "a ski carve

mark over the edge of the stump[,]" indicating that someone had skied directly over

the stump, though he could not be sure when it was made or by whom. Id. at 6

(quotation omitted). 

In his opposition to Lutsen's motion for summary judgment, Brunsting pointed

to additional circumstantial evidence. For example, Brunsting noted that, in the

accident report that Christiansen filled out on the day of the accident, she stated that

"[i]t 'seems' like some part of the terrain may have caused [Brunsting] to lose control."

Appellants' App. 114-15. Walch also stated in his deposition that Brunsting "had, you

know caught something with [his] ski, like a root."6

 Id. at 194. At the scene of the

accident, Benson walked back up the hill to examine the stump, presumably because

he felt it played some role in Brunsting's accident. Additionally, the stump was in an

area of smooth, groomed snow on an intermediate run, where skiers would not expect

to come upon such an obstacle.
-13-

Viewing this evidence in the light most favorable to Brunsting, we find a

genuine issue of material fact exists as to whether Lutsen's failure to remove the stump

was a proximate cause of Brunsting's accident, because a reasonable jury could

conclude that Brunsting hit the stump or that the stump otherwise caused his accident.

The circumstantial evidence adduced by Brunsting as to causation is sufficient to

overcome summary judgment if "it furnishes a reasonable basis for supporting an

inference by the jury of the ultimate fact that the defendant's negligence caused the

plaintiff harm." McCarthy, 567 N.W.2d at 506. Here, a jury could reasonably rely

on this evidence to hold that the stump was a substantial factor in causing Brunsting's

fall. Indeed, Minnesota courts have upheld jury verdicts where there was similar

circumstantial evidence on causation. See, e.g., Lutz v. Lilydale Grand Central Corp.,

250 N.W.2d 599, 600 (Minn. 1977) (per curiam) (affirming jury verdict in slip-andfall case where the only evidence of causation was circumstantial evidence that there

was ice in the parking lot); Majerus v. Guelsow, 113 N.W.2d 450, 454-56 (Minn.

1962) (affirming jury verdict where jury inferred from circumstantial evidence that

the decedent's fall down a flight of stairs was caused by defendant's negligent

maintenance of the stairs). Brunsting is not required to disprove all other possible

causes of the accident. See Mitton v. Cargill Elevator Co., 144 N.W. 434, 436 (Minn.

1913). Rather, he must only furnish a reasonable basis upon which a jury could infer

that Lutsen's negligence caused his harm. See id. ("Where a cause is shown that might

produce a given accident, and the fact appears that an accident of that particular

character did occur, it may be a warrantable inference, in absence of a showing of

other causes, that the one known was the operative agency in bringing about the

result.").

Lutsen places significant emphasis on statements made by Christiansen and

Walch that Brunsting did not hit the stump before falling. Although neither this court

nor the district court is to determine the credibility of this testimony at the summary

judgment stage, see Anderson, 477 U.S. at 255, especially given the direct and

circumstantial evidence to the contrary, we note that the precise issue here is not
-14-

whether Brunsting hit the stump, but whether Lutsen's failure to remove the stump

was a proximate cause of Brunsting's accident. A finding that Brunsting did not hit

the stump is not incompatible with a finding that Lutsen was negligent. Under

Minnesota law, Brunsting must prove that Lutsen's failure to remove the stump was

the proximate cause of his injuries, and "that [this] negligent conduct was a substantial

factor in bringing about the injury." Lietz, 718 N.W.2d at 872. If Brunsting in fact

hit the stump, and it in fact caused him to fall, then the stump would clearly be a

"substantial factor" in Brunsting's injuries, as would Lutsen's failure to remove the

stump. Additionally, we see no reason why the existence of the stump could not be

a substantial factor in Brunsting's fall if seeing it caused him to take evasive action and

lose control. See Restatement (Second) of Torts § 303 cmt. d ("A in joke throws a

cannon cracker in front of an automobile which is being driven rapidly but within the

speed limit. The explosion so startles B, the driver of the automobile, that he loses

control of the car and swerves into a stone wall, hurting himself and the passengers.

A is negligent toward B and the passengers in B's car.").

Because Brunsting provided more than a "mere scintilla" of evidence on

causation, see Anderson, 477 U.S. at 252, Lutsen has failed to meet its burden of

showing that there is no genuine issue of material fact. Indeed, the parties' arguments

before the district court and on appeal focused primarily on a question of fact, namely

whether the partially exposed stump caused Brunsting's accident. Based on the

evidence presented, including the statement Benson claims Christiansen made at the

scene, a reasonable jury could come to more than one conclusion as to the stump's role

in Brunsting's accident. As such, summary judgment is inappropriate. 

III.

For the foregoing reasons, we reverse the district court's grant of summary

judgment and remand for further proceedings consistent with this opinion. Because
-15-

Cheri Brunsting's claim for loss of consortium is derivative of Keith Brunsting's claim,

we must reverse the grant of summary judgment as to her claim as well.

SHEPHERD, Circuit Judge, concurring in part, dissenting in part, and concurring in

the judgment.

I agree with the majority that Brunsting provided more than a “mere scintilla”

of evidence on causation, see supra at 14 (citing Anderson, 477 U.S. at 252), such that

summary judgment in favor of Lutsen was inappropriate, and I concur in the

majority’s remand of this case. However, I disagree with the majority’s determination

that the district court abused its discretion in holding that Christiansen’s statement was

not an excited utterance under Federal Rule of Evidence 803(2). Thus, I respectfully

dissent from Part II.A of the majority’s opinion.

To qualify as an excited utterance under Rule 803(2), a hearsay statement’s

proponent must prove: “(i) that the statement was in reaction to a truly startling event;

(ii) that the statement was made under the stress of excitement caused by that event;

and (iii) that the statement relates to the event.” Weissenberger & Duane,

supra,§ 803.8. The majority correctly notes that our review of evidentiary issues

decided by the district court is limited and that we review those decisions only for an

abuse of discretion, even at the summary judgment stage. See supra at 7 (citing

Morgan, 380 F.3d at 467; Yates, 267 F.3d at 802). However, the majority departs

from this clear standard and improperly engages in a de novo review of the district

court’s decision.

Under an abuse of discretion standard of review, “[w]e are not to substitute our

judgment for that of the district court.” United States v. Iron Shell, 633 F.2d 77, 86

(8th Cir. 1980). It has often been noted that “[a] district court is accorded a wide

discretion in determining the admissibility of evidence under the Federal Rules.”

United States v. Abel, 469 U.S. 45, 54 (1984); see also Control Data Corp. v. Int’l
7

In his reply brief, Brunsting argued that Christiansen’s “statement was made

contemporaneously with the latter, truly startling event, which was her immediate

presence at the chaotic scene of a dire emergency . . . .” (Appellant’s Reply Br. 6.)

The majority seizes on this argument and holds that the district court’s failure to

define the “event” as Christiansen’s “witnessing a near-fatal traumatic accident from

the chairlift and immediately rushing to the scene where Brunsting was unconscious,

bleeding from the mouth, turning blue and believed to be near death, as others tried

to stabilize him until medical assistance arrived[,]” supra at 8, constitutes an abuse of

discretion. According to the majority, Christiansen’s statement was actually made

contemporaneously with the event, because the event lasted at least as long as it took

Christiansen to make her statement. First, I believe such an open-ended definition of

the “event” goes beyond what Rule 803(2) intends. The “event,” for purposes of Rule

803(2), must have some ending, and the most logical place for that ending is with the

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Bus. Machs. Corp., 421 F.2d 323, 326 (8th Cir. 1970) (“It should be remembered that

a trial court has a great latitude in ruling on the admissibility of evidence.”); Burger

Chef Sys., Inc., v. Govro, 407 F.2d 921, 930 (8th Cir. 1969) (“The discretion of the

trial court in the admission of evidence, when exercised within normal limits, should

not be disturbed on appeal.”). In deciding evidentiary issues, the district court “has

a ‘range of choice, and . . . its decision will not be disturbed as long as it stays within

that range and is not influenced by any mistake of law.’” Aaron v. Target Corp., 357

F.3d 768, 774 (8th Cir. 2004) (quoting Verizon Commc’ns, Inc. v. Inverizon Int’l,

Inc., 295 F.3d 870, 873 (8th Cir. 2002)).

Contrary to the majority, I can find no mistake of law in the district court’s

evidentiary decision. The district court correctly noted the factors used in determining

whether a statement qualifies as an excited utterance, see Brunsting, Civ. No. 07-4192,

slip op. at 7 (citing Wilcox, 487 F.3d at 1170), and applied those factors, noting that

“[t]he alleged statement was made four to five minutes after the accident took place,

and was made in response to Benson’s inquiry[,]” id. at 8, “there is no evidence that

Christiansen was . . . acting as if she was in such a state as to be unable to falsify[,]”

id., and “Christiansen had no connection to Brunsting which may lead to a strong

emotional response to his unfortunate circumstances[,]” id. at 9.7

 While clearly there
event that caused Brunsting’s injury, i.e., when he struck the tree. This is supported

by the content of Christiansen’s statement, which relates not to Brunsting’s condition,

but rather to the cause of the accident itself. Second, it is unclear whether Brunsting

made this argument in the trial court, as the argument was raised for the first time

before us in Brunsting’s reply brief. As such, we need not address it. See United

States v. Barraza, 576 F.3d 798, 806 n.2 (8th Cir. 2009). Finally, even if the “event”

is properly understood to last at least until Christiansen made her statement, I do not

believe that the district court’s contrary determination constitutes an abuse of

discretion. 

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was also evidence tending to support Brunsting’s argument that Christiansen’s

statement was an excited utterance, see supra at 8-10, the majority’s mere

disagreement with the way the district court weighed this evidence does not amount

to an abuse of discretion. Because the district court is in the best position to rule on

the admissibility of evidence, we have historically avoided engaging in a de novo

review of a district court’s evidentiary rulings, see Iron Shell, 633 F.2d at 86, and we

should do so here. 

Because the district court did not commit “a clear error of judgment in weighing

the facts on the basis of the record before it,” Boswell, 270 F.3d at 1204, I would

uphold the court’s evidentiary ruling that Christiansen’s statement does not qualify as

an excited utterance. Therefore, I respectfully dissent from Part II.A of the majority’s

opinion. Because I agree that, even without this evidence, Brunsting presented

sufficient evidence to defeat summary judgment, I concur in the remainder of the

majority’s opinion and in the judgment. 

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