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PANTANO v. AMERICAN BLUE RIBBON HOLDINGS

Cite as 303 Neb. 156

Ross A. Pantano and Karyl L. Einerson, a

Representatives of the Estates of Arlene L

and Anthony R. Pantano, appe

cross-appellants, v. American Blu

Holdings, LLC, doing business as Vil

appellant and cross-appellee, and Fran

Kucirek, as Trustee of the Kucirek

Trust, and Pamela K. Kucirek, as 

of the Kucirek Living Trust, appel

___ N.W.2d ___

Filed May 17, 2019. No. S-18-815.

1. Verdicts: Appeal and Error. When reviewing a jury verdict, an appellate court considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.

2. Verdicts: Juries: Appeal and Error. A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent 

evidence presented to the jury upon which it could find for the successful party.

3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews 

for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to 

admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

4. Rules of Evidence: Hearsay. An excited utterance does not have to be 

contemporaneous with the exciting event. It may be subsequent to the 

event if there was not time for the exciting influence to lose its sway.

5. ____: ____. The true test of an excited utterance is not when the exclamation was made but whether, under all the circumstances, the declarant 

was still speaking under the stress of nervous excitement and shock 

caused by the event.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/02/2019 01:06 AM CDT
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6. ____: ____. Relevant facts to determine whether a statement is an 

excited utterance include the declarant’s manifestation of stress and the 

declarant’s physical condition.

7. Trial: Evidence: Jury Instructions. An error in the admission of evidence may be cured by an instruction from the court.

8. Pretrial Procedure: Pleadings: Evidence. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury.

9. Trial: Pleadings: Evidence: Appeal and Error. It is not the office 

of a motion in limine to obtain a final ruling upon the ultimate admissibility of the evidence. Therefore, when a court overrules a motion in 

limine to exclude evidence, the movant must object when the particular 

evidence is offered at trial in order to predicate error before an appellate court.

10. Summary Judgment: Final Orders: Appeal and Error. The denial 

of a motion for summary judgment is not a final order reviewable 

on appeal.

11. Negligence: Proof. Establishing that an accident has occurred does not 

prove a case of negligence.

12. Negligence: Evidence: Presumptions: Proof. Negligence is not presumed and must be proved by evidence, direct or circumstantial.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirmed as modifie

Stephen G. Olson II and Andrea A. Montoya, of Engles, 

Ketcham, Olson & Keith, P.C., for appellant.

John M. Lingelbach, Minja Herian, and Casandra M. 

Langstaff, of Koley Jessen, P.C., L.L.O., for appellees Ross A. 

Pantano and Karyl L. Einerson.

Heavican, C.J., Cassel, Stacy, Funke, Pa

Freudenberg, J

Heavican, C

INTRODUCTION

Following trial, a jury entered a verdict in favor of the 

estate of Arlene L. Pantano for $245,000 and in favor of the 

estate of Anthony R. Pantano for $15,000, but found that 

Arlene was 25 percent negligent. Accordingly, the district 

court entered a judgment for the estates in the amount of 
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PANTANO v. AMERICAN BLUE RIBBON HOLDINGS

Cite as 303 Neb. 156

$195,000. American Blue Ribbon Holdings, LLC (American 

Blue Ribbon), appeals. We affirm as modified.

FACTUAL BACKGROUND

Arlene and her husband, Anthony, filed suit against 

American Blue Ribbon on October 22, 2015. The suit alleged 

damages for injuries and loss of consortium suffered when 

Arlene fell at a Village Inn restaurant owned by American 

Blue Ribbon. Arlene alleged that she suffered a broken hip 

when she tripped on an entryway rug and fell near the 

entrance of the restaurant.

Arlene died of natural causes on July 19, 2016. Anthony had 

died approximately 4 months earlier, on March 26. This lawsuit 

was revived in the names of the copersonal representatives of 

Arlene’s and Anthony’s estates (the estates).

A jury trial was held in June 2018. The jury found for the 

estates in the total amount of $260,000, but found Arlene 

was 25 percent negligent in the cause of her fall. The district 

court entered judgment in favor of the estates for $195,000. 

American Blue Ribbon appealed.

At trial, Arlene’s children, Ross A. Pantano, Karyl L. 

Einerson (Karyl), and Marilou DiPrima (Marilou), were all 

permitted to testify, over American Blue Ribbon’s hearsay 

objection, that Arlene told them that she had tripped on the 

entryway rug at the restaurant and fell, injuring her hip. In 

addition, evidence was adduced as to Arlene’s medical bills, 

along with testimony that American Blue Ribbon had not paid 

those bills. Further details of evidence offered will be discussed as appropriate.

ASSIGNMENTS OF ERROR

On appeal, American Blue Ribbon assigns that the district 

court erred in (1) denying its motions in limine; (2) overruling 

its hearsay objections as to the testimony of Ross, Karyl, and 

Marilou; (3) admitting evidence that American Blue Ribbon 

offered to pay, and then did not pay, medical bills incurred 

by Arlene; (4) denying its motion for summary judgment; 
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(5) denying its motion for directed verdict; (6) denying its 

motion for judgment notwithstanding the verdict; and (7) denying its motion for new trial.

On cross-appeal, the estates assign that the district court 

erred in (1) overruling their motion to strike American Blue 

Ribbon’s comparative negligence affirmative defense, (2) 

instructing the jury as to the comparative negligence affirmative defense, and (3) providing a jury verdict form incorporating comparative negligence.

STANDARD OF REVIEW

[1,2] When reviewing a jury verdict, an appellate court 

considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.1 A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find 

for the successful party.2

[3] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de 

novo the court’s ultimate determination to admit evidence 

over a hearsay objection or exclude evidence on hearsay 

grounds.3

ANALYSIS

The primary issues on appeal in this case are (1) whether 

statements made by Arlene and Anthony at the time of Arlene’s 

fall were admissible under the so-called excited utterance 

exception to the prohibition against hearsay4; (2) whether 

1 Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

2 Id.

3 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908 

N.W.2d 60 (2018).

4 See Neb. Rev. Stat. § 27-803(1) (Reissue 2016).
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the admission into evidence of a statement of a Village Inn 

employee suggesting that American Blue Ribbon would pay 

Arlene’s medical bills, along with testimony that American 

Blue Ribbon did not pay those bills, was prejudicial; and (3) 

whether the district court erred in instructing the jury with 

regard to American Blue Ribbon’s affirmative defense of comparative negligence.

Excited Utterance.

American Blue Ribbon assigns on appeal that the district 

court erred in admitting Arlene’s statement that she fell on the 

entryway rug, because that statement was hearsay and did not 

fall within the excited utterance exception to the hearsay rule. 

Specifically, American Blue Ribbon contends that Arlene’s 

statement did not relate to a “startling event”5; that the statement was not made under the “stress” of the event6

; and that, 

in any case, the statement was unreliable because Arlene had 

dementia. In addition, American Blue Ribbon argues that the 

estates did not establish that there was a defect in the entryway 

rug that would allow Ross’ testimony regarding Arlene’s statement to be considered reliable.

Section 27-803 provides that “[a] statement relating to a 

startling event or condition made while the declarant was under 

the stress of excitement caused by the event or condition” is 

“not excluded by the hearsay rule.” For a statement to qualify 

as an excited utterance under § 27-803(1), the following criteria must be established: (1) There must have been a startling 

event, (2) the statement must relate to the event, and (3) the 

statement must have been made by the declarant under the 

stress of the event.7

[4-6] An excited utterance does not have to be contemporaneous with the exciting event. It may be subsequent to the 

5 Id.

6 Id.

7 State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
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event if there was not time for the exciting influence to lose 

its sway.8 The true test is not when the exclamation was made 

but whether, under all the circumstances, the declarant was 

still speaking under the stress of nervous excitement and shock 

caused by the event.9 “Relevant facts include the declarant’s 

manifestation of stress, such as ‘“yelling,”’ and the declarant’s 

physical condition.”10

Arlene’s statements to her children regarding the cause of 

her injury fall within the excited utterance exception. Ross testified that Arlene, who was 90 years old at the time, was upset, 

crying, and in obvious pain after the fall. The evidence showed 

that Arlene had fractured her hip during the incident. Anthony 

was pacing and obviously distressed. Thus, when considered 

as to this declarant, the fall would be a startling event. And 

Arlene’s statement that she tripped over the entryway rug was 

related to that startling event.

Furthermore, Arlene’s statement to Ross that she had tripped 

over the entryway rug was made at the restaurant shortly after 

her fall and prior to her being transported to the hospital. 

Arlene’s statements to Karyl and Marilou were made within 

“minutes” of Arlene’s transport to the hospital. Both Karyl 

and Marilou testified that their mother was upset and in pain. 

Marilou testified that Arlene told her that she tripped on the 

entryway rug as she entered the restaurant and that Arlene indicated with her hands an irregularity with the rug that Marilou 

described to Arlene as the rug’s having been buckled.

Upon our de novo review, we conclude that Arlene was still 

under the influence of the startling event at the time she made 

the statements to Ross, Karyl, and Marilou.

And we find no merit to American Blue Ribbon’s assertion 

that the fact that Arlene had been diagnosed with dementia 

8 Id.

9 Id.

10 Id. at 929, 906 N.W.2d at 325.
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affected the admissibility of her statements as excited utterances. American Blue Ribbon is correct that the touchstone 

of the excited utterance exception is trustworthiness. But a 

person suffering from dementia is still able to experience a 

startling event and react to that event accordingly. American 

Blue Ribbon cited to no authority and offered no evidence to 

suggest otherwise. A reaction to a startling event made under 

the stress of that event is reflexive and unthinking; it is not the 

product of conscious thought.11 Such a statement might not be 

accurate, and any shock might have interfered with the declarant’s observation or memory,12 but that does not prevent the 

statement from being an excited utterance. That Arlene was 

diagnosed with dementia was evidence produced at trial, but 

that fact does not affect the admissibility of her statement as an 

excited utterance. There is no merit to this assertion.

Admission of Offer to Pay 

Medical Expenses.

American Blue Ribbon also argues that the district court 

erred in allowing Ross to testify that a Village Inn employee 

told him that Arlene’s medical bills would be paid by the restaurant and in admitting Ross’ testimony that American Blue 

Ribbon and Village Inn had not, in fact, paid those bills.

Neb. Rev. Stat. § 27-409 (Reissue 2016) provides that 

“[e]vidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is 

not admissible to prove liability for the injury.” As American 

Blue Ribbon observes, Ross was permitted, in contravention of 

this statute, to testify that a Village Inn employee told him that 

Arlene’s medical expenses would be paid by the restaurant, but 

that the bills were not ever paid by Village Inn or American 

Blue Ribbon.

11 G. Michael Fenner, The Hearsay Rule 116 (3d ed. 2013).

12 Id.
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[7] But this court has held that an error in the admission of 

evidence may be cured by an instruction from the court.13 In 

this case, jury instruction No. 12 was also read to the jury:

There has been evidence that the Defendant has not 

paid any of Plaintiffs’ medical bills. The law of Nebraska 

is that a Defendant such as Village Inn has no duty to pay 

medical bills of Arlene Pantano unless and until there has 

been a determination that the Defendant was negligent or 

breached a duty owed to Arlene Pantano.

Indeed, instruction No. 12 was drafted by counsel for American 

Blue Ribbon and was the suggested cure for the error of the 

erroneous admission of Ross’ testimony. There is no merit to 

this assignment of error.

Liability of American Blue Ribbon.

American Blue Ribbon does not specifically assign that the 

district court erred in finding sufficient evidence to support 

the jury’s finding of liability. But it does argue as much in its 

discussion of its assigned errors of the court’s denial of summary judgment, directed verdict, judgment notwithstanding 

the verdict, and new trial.

In any case, American Blue Ribbon’s contention is without 

merit, because there was evidence to support the jury’s finding 

of liability. First, Karyl and Marilou both testified that Arlene 

told them that she tripped over the entryway rug at the Village 

Inn and that, in the words of Marilou, the rug was “buckled.” 

As noted above, Arlene’s statements are admissible hearsay 

under the excited utterance exception.

In addition, Ross testified that as Arlene was getting loaded 

into an ambulance, a Village Inn server wearing a name tag 

with the name “Makenzie” told him that she had tripped 

on the entryway rug twice that morning. Though American 

Blue Ribbon objected at trial on the basis that the server’s 

13 Olson v. City of Omaha, 232 Neb. 428, 441 N.W.2d 149 (1989).
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statement was inadmissible hearsay, they did not clearly 

assign and argue that admission as error on appeal. There was 

sufficient evidence that American Blue Ribbon was negligent, 

and thus there is no merit to American Blue Ribbon’s assignments of error regarding the denial of its motion for directed 

verdict, for judgment notwithstanding the verdict, and for 

new trial.

Remaining Assignments of Error.

American Blue Ribbon has also alleged various other assignments of error, all of which are without merit.

First, American Blue Ribbon contends that the district court 

erred in denying its motions in limine, specifically arguing that 

the estates failed to disclose witnesses, and for that reason the 

testimony of those witnesses should be stricken.

[8,9] A motion in limine is a procedural step to prevent 

prejudicial evidence from reaching the jury.14 It is not the office 

of a motion in limine to obtain a final ruling upon the ultimate 

admissibility of the evidence.15 Therefore, when a court overrules a motion in limine to exclude evidence, the movant must 

object when the particular evidence is offered at trial in order 

to predicate error before an appellate court.16 Thus, by assigning only that the court erred in denying its motions in limine, 

American Blue Ribbon has failed to preserve those arguments 

on appeal.

Moreover, American Blue Ribbon simply argues that certain 

witnesses were not disclosed and that their testimonies should 

be stricken. But American Blue Ribbon does not identify in its 

brief which witnesses were not disclosed. It is not the job of 

this court to search the record to find error. There is no merit 

to this assignment of error.

14 McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).

15 Molt v. Lindsay Mfg. Co., 248 Neb. 81, 532 N.W.2d 11 (1995).

16 McCune v. Neitzel, supra note 14.
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[10] American Blue Ribbon also assigns that the district 

court erred in denying its motion for summary judgment. But 

the denial of a motion for summary judgment is not a final 

order reviewable on appeal,17 and as such, this assignment is 

without merit.

Finally, American Blue Ribbon also argues, though does not 

assign, that the district court erred in allowing Ross to testify 

regarding the effect that Arlene’s fall had on her dementia. 

Because this was not specifically assigned as error, we will not 

address that contention further.

Comparative Negligence.

In its cross-appeal, the estates contend that the district court 

erred in overruling their motion to strike, instructing the jury 

on comparative negligence, and including comparative negligence on the verdict form, because American Blue Ribbon 

failed to offer any evidence that Arlene was negligent.

In response, American Blue Ribbon argues that the estates 

did not prove that it was negligent and further asserts that 

Arlene’s age, dementia diagnosis, and preexisting medical conditions were such that “could reasonably lead a fact-finder to 

conclude [that Arlene] was at fault for her fall.”18

[11,12] Establishing that an accident has occurred does not 

prove a case of negligence.19 Negligence is not presumed and 

must be proved by evidence, direct or circumstantial.20 Nothing 

American Blue Ribbon directs us to shows that any action by 

Arlene was negligent. As the estates argue, there is no suggestion that Arlene was not wearing her glasses or shuffling her 

feet or that she did not look where she was going. Nor was 

there evidence that due to her age and health, Arlene should 

17 See Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).

18 Reply brief for appellant at 28.

19 Burns v. Veterans of Foreign Wars, 231 Neb. 844, 438 N.W.2d 485 (1989).

20 Id.
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have known to use a wheelchair or a walker. In short, there is 

no evidence supporting a conclusion that Arlene was negligent. 

We accordingly find that the estates’ assignment of error on 

cross-appeal has merit.

Having found that the cross-appeal on the issue of comparative negligence has merit, we conclude that the district court 

erred in instructing the jury with regard to comparative negligence and in providing a verdict form allowing for a deduction 

for Arlene’s negligence. The judgment in favor of the estates 

should not have been reduced by 25 percent, and we therefore 

modify the judgment to $260,000.

CONCLUSION

The decision of the district court is affirmed as modified.

Affirmed as modified

Miller-Lerman, J., not participati