No. 97-472 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1998 MT 259 

DARLEXE M, VINCELETTE, 

Plaintiff and Appellant, 

v. 

METROPOLITAN LIFE INSURANCE COMPANY, and 

BILLINGS SHERATON HOTEL, 

Defendants and Respondents 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Frank B. Morrison, Jr.; Morrisons, McCarthy & Baraban; 

Whitefish. Montana 

Randy S. Laedeke, Laedeke Law Office, Billings, Montana 

For Respondents: 

Calvin J. Stacey, Stacey & Walen, Billings, Montana 

Submitted on Briefs: August 13, I998 

Decided: October 30, 1998 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

71 The plaintiff, Darlene M. Vincelette, commenced this action in the District Court for 

the Thirteenth Judicial District in Yellowstone County to recover damages for personal 

injunes sustained while a guest of the defendant, Billings Sheraton Hotel. Following a jury 

trial, a verdict was rctuincd for the hotel. Darlene appeals from the judgment entered 

pursuant to that verdict and from the denial of her motion for a new trial. We reverse the 

judgment of the District Court and remand for further proceedings. 

712 The issues presented on appeal are: 

113 1. Did the District Court abuse its discretion when it allowed a witness to testify 

about out-of-court statements made by an unidentified declarant? 

14 2. Did the District Court abuse its discretion when it refused to admit photographs 

offered as dcmonshative evidence? 

75 3. Did the Distr~ct Court err when it denied plaintiff's motion to compel 

discovery? 

FACTUAL BACKGROUND 

76 Around midnight on March 19 or 20, 1989, Darlene Vincelette fell while entering the 

Billings Sheraton Hotel. She and her companion had passed through the outer doors leading 

to the hotel lobby and were crossing over a carpeted entryway. Darlene took a step backward 

to allow her companion to open one of the inner doors. As she did so, she fell and injured 

her back. 
17 Darlene asserts that the cause of the fall was either a defect in the carpeting or 

negligent maintenance of the carpeting. The hotel denied any defect or neghgence. It 

alleged that Darlene was intoxicated and that her condition was the cause of her fall. 

718 Darlene moved the District Court prior to trial for an order excluding testimony from 

hotel employees that they had been told Darlene was drunk. The District Court did not rule 

on the mot~on. 

19 At trial, one of the hotel's maintenance engineers was allowed to testify that he had 

received a radio call from another hotel employee, who stated that Darlene was drunk. 

Plaintifrs counsel moved to strike the testimony as hearsay, but the motion was denied. The 

dcclarant was never identifi cd nor produced as a witness. 

710 The District Court also refused to allow Darlene to admit photographs of the 

entryway, taken seven years after the accident, which were offered to illustrate the testimony 

of several witnesses regarding the condition of the carpet. 

ISSUE 1 

711 Did the District Court abuse its discretion when it allowed a witness to testify about 

out-of-court statements made by an unidentified declarant? 

1/12 We review evidentiary rulings for an abuse of discretion. The district court has broad 

discretion to determine whether or not evidence is relevant and admissible pursuant to the 

Montana Rules of Evidence. Absent a showmg of an abuse of discretion, the trial court's 
determination will not be overturned. See State v. Passama (1993), 261 Mont. 338,341, 863 

P.2d 378,380 (citing State v. Crist (1992), 253 Mont. 442,445, 833 P.2d 1052, 1054). 

113 Darlene alleged that the cause of her fall was the condition of the hotel carpeting, 

causcd by improper maintenance. As a defense, the hotel asserted that there was nothing 

wrong with the carpeting, but that Darlene's intoxication was the cause of her fall. Prior to 

trial, Darlene filed a motion in limine to exclude testimony from hotel employees that they 

were told the plaintiff was drunk. The District Court did not rule on the motion, but stated 

that it would make a decision at trial, once a foundation for the testimony existed. 

7/14 At trial, Darlene called Larry Vandenbosch, a maintenance engineer on duty at the 

hotel the night of her accident, as an adverse witness. On direct examination, Mr. 

Vandenbosch testified that he received a report by radio that a woman had fallen in the 

entryway. He then went to investigate, but the enhyway and lobby were empty when he 

arrived. He further testified that upon his arrival he examined the entryway carpeting. 

71 5 On cross-examination, counsel for the hotel asked Vandenbosch what "information" 

the radio caller gave him. Vandenbosch then testified that he was told a woman had fallen 

in the entryway and that she was drunk. He could not remember who placed the radio call, 

and the unidentified caller did not testify at trial. 

7/16 Darlene moved to strike the statement that she was drunk on the basis that it was 

hearsay. The District Court allowed the statement on the basis that it was not offered for the 
truth of the matter asserted, but "n~erely to reflect what was said to him and therefore it's not 

hearsay." 

7 17 Following the ruling. the hotel again elicited testimony from Vandenbosch that he had 

been told Darlene was drunk. Then, in closing argument, counsel for the hotel repeated the 

tcstimony. 

71 8 On appeal, Darlene contends the out-of-court statement was offered to show that her 

fall resulted from intoxication rather than a defect in the carpeting. The hotel contends that 

the tcstirnony was not hearsay because it was not offered to prove the truth of the matter 

asserted, but to show its effect on the witness's state of mind and to show why he went to the 

entryway to investigate. 

719 Hearsay is a statement, other than one made by the declarant while testifying at the 

trial, offered in evidence to prove the truth of the matter asserted. See Rule 801(c), 

M.R.Evid. Hcarsay is not adnlissible except as provided by the rules of evidence. See Rule 

802, M.R.Evid. A statement does not fit within the definition of hearsay when it is not 

offered to prote the truth of the matter asserted, but to show the resulting effect on the 

witness's state of mind. See Mannix 1: Butte Water Co. (1993), 259 Mont. 79, 86, 854 P.2d 

834,838; Moats Trucking Co v. Gallatin Dairies (19881,231 Mont. 474,479,753 P.2d 883, 

886. 

720 In Moats, the plamtiff trucking firm brought an action for breach of contract and 

brcach of the covenant of good faith and fair dealing when the defendant dairy company 
terminated a hauling contract with forty-eight days' notice. The district court allowed one 

of the defendant's employees to explain why notice was not given immediately when the 

decision was made to terminate the contract by relating an out-of-court conversation with 

another employee, who expressed concern that the plaintiff would terminate services 

immediately upon being advised that its contract was being terminated. The district court 

held that the out-of-court conversation was not admitted to prove that the plaintiff would 

actually have terminated services immediately, but to show the effect that it had on the state 

of mind of the defendant's employee. Prior to allowing the testimony, the district court 

cautioned the juiy that the party's testimony was admitted only for the purpose of showing 

that the statements were made, not for proving that they were true. We affirmed the ruling 

of the district court on that basis. See Moars, 231 Mont. at 479, 753 P.2d at 886. 

721 Here, there is no similar purpose for admitting an out-of-court statement about 

Darlcnc's intoxication. The testimony that a woman had fallen, offered on direct 

exammation, served to show why Vandenbosch went to the entryway and examined the 

carpeting. Thc specific statement that the woman was drunk had no bearing on his decision 

to investigate. The statement served no other purpose than to prove that Darlene fell because 

she was drunk, and is more analogous to the hearsay testimony offered in Mannix. 

1/22 In Mrttzrzlx, the plaintiff brought an action for wrongful termination of employnlent 

after he was discharged for his initial refusal to follow, and later criticism of, a company 

d~recttve. He sought to introduce testimony from other employees of the same company 
regarding the transaction u hich led to his discharge. He argued that the out-of-court 

statements were offered to prove his state of mind and, therefore, were not hearsay pursuant 

to our decision in Moats. The district court disagreed, and we affirmed on the basis that the 

statements were, in fact, offered to prove his employer's conduct and, therefore, for the truth 

of what was asserted. See .Mamix, 259 Mont. at 86-87,854 P.2d at 839. 

Ti23 Here, the hotel's argument that Vandenbosch's testimony was not offered to prow the 

truth of what was asserted is belied by the fact that the hotel's defense was based on its 

contention that Darlene mas intoxicated. The evidence the hotel sought to present, 

suggesting that Darlene was chink, was an out-of-court statement offered to prove the truth 

of what was asserted, and was inadmissible hearsay pursuant to Rules 801(c) and 802, 

M.R.Evid. We conclude that the District Court erred when it allowed the hearsay testimony. 

724 For crror to be the basis for a new trial, it must affect the substantial rights of the 

appellant. See Rule 61, M.R.Civ.P. Because of the inflammatory nature of the evidence, and 

Darlene's complete inability to test its reliability by cross-examination, we conclude that the 

evidence did affect Darlene's substantial rights and was prejudicial. For this reason, we 

reverse the judgment of the District Court and remand for a new trial. 

ISSUE 2 

125 Did the District Court abuse its discretion when it refused to admit photographs 

offered as demonstrative evtdence? 
726 We review the admission of demonstrative evidence for a manifest abuse of 

discretion. See Cowles v. Slzeeline (1993), 259 Mont. 1, 12-13, 855 P.2d 93, 100; Pal~tzer by 

Diacon v. Furniers Ins. Excfz. (1988), 233 Mont. 515, 522-23. 761 P.2d 401,406. 

127 At trial, Darlene sought several times to admit photographs of the hotel entryway 

taken seven years after the accident. The photos depicted missing strips of carpeting and 

corners of carpet tiles which were sticking up. The hotel objected to the admission of the 

photographs on the basis that due to the passage of time, wear and tear, and a change in 

ownership, the conditions they depicted were more prejudicial than probative. It also 

objected on the grounds that Darlene alleged her fall was caused by a hole in the carpeting, 

while the photos depicted other types of defects. Darlene contends the photographs were 

relevant because they served to demonstrate the effect of wear and tear and improper 

maintenance on the carpeting. 

128 Generally. all relevant evidence is admissible and that which is not relevant is not 

admissible. See Rule 402, M.R.Evid. Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice, confusion of 

the issue, misleading the jury, or by considerations of undue delay, waste of time, or needless 

presentation of cumulative material. See Rule 403, M.R.Evid. 

729 If relcvant, demonstrative exhibits are admissible to supplement a witness's spoken 

description of the event and to clariff some issue in the case, if they are more probative than 

prejudicial. See Codes, 259 Mont. at 12, 855 P.2d at 100 (citing Palmer, 233 Mont. at 
522-23, 761 P.2d at 406). By contrast, "they are inadmissible only when they do not 

illustrate or make clearer some issue in the case; that is, where they are irrelevant or 

immaterial, or where they are of such a character as to prejudice the jury." Cowles, 259 

Mont. at 13, 855 P.2d at 100 (citing Workman v. Mcliztyre Const. Co. (1980), 190 Mont. 5, 

24,617 P.2d 1281, 1291). 

1/30 Here, the parties stipulated that the photos were taken seven years after the accident. 

The District Court heard testimony from a witness responsible for cleaning the carpeting at 

the time of the accident, through whom Darlene had attempted to introduce the photos, and 

concluded that the caipeting, as depicted, was sufficiently different &om the time of the 

accident that the photos should not be admitted. The District Court also concluded that the 

photos were not relevant because they depicted defects of a different nature than those 

alleged by Darlene. 

731 Given the length of time between the accident and the photographs, as well as the 

change in the condition of the carpeting, we conclude that the District Court did not abuse 

its discretion when it refused to admit the photographs. 

ISSUE 3 

732 Did the District Court err when it denied Plaintiffs motion to compel discovery? 

733 Because we have remanded this case for a new trial, we presume that a new discovery 

schedule will be established and that the parties will have the opportunity to complete any 
discovery they consider necessary. Thcrefore, we deem it unnecessary to decide the 

discovery issues presented on appeal. 

734 We rcvcrse the judgment of the District Court and remand for further proceedings 

consistent with this opinion. 

Wc Concur: 

Justices 
Justice Karla M. Gray specially concurs and dissents. 

735 I concur in the Court's opinion on issue 2, which holds that the District Court did not 

abuse its discretion when it refused to admit photographs offered as demonstrati\re evidence. 

I dissent from the opinion on issue 1 and, for that reason, I would not remand for a new trial. 

As a further consequence of my dissent, I would address issue 3 and hold that the District 

Court did not abuse its discretion in denying Darlene's motion to compel discovery. 

736 With regard to issue 1, I agree with the Court that the pertinent questions are 1) 

whether the District Court abused its discretion in admitting Vandenbosch's testimony on 

cross-examination that the radio caller told him that the woman who had fallen was drunk; 

and 2) if so, whether the admission of that testimony materially affected Darlene's substantial 

rights. I also agree with the Court's conclusion that the District Court abused its discretion 

in admitting the hearsay testimony. It is my view, however, that the Court is wrong--and 

clearly wrong--in holding that Darlene's substantial rights were affected, thereby entitling her 

to a new trial. 

737 The Court's conclusion that Darlene's substantial rights were affected by admission 

of part of Vandenbosch's testimony and by the reference to it in closing argument by defense 

counsel is based on far too limited a review of the record before us, a review which would 

lead the reader to conclude that Vandenbosch's reference was the only testimony regarding 

whether Darlene had been drinking before her fall at the Sheraton. Nothing could be further 

from the truth. 

138 The controlling pretrial order in this case reflects that Darlene contended the Sheraton 
and its insurer were negligent and that their negligence resulted in serious and permanent 

injury to her back and legs. The defendants contended, in turn, that they were not negligent 

in any fashion. They further contended that, assuming some negligence on their part was 

found, their negligence was not a cause of any damages and/or injuries sustained by Darlene. 

Finally, they contended that Darlene was negligent and that her negligence contributed to the 

cause of her damages and/or injuries. The case proceeded to trial on the basis of the pretrial 

order. 

5/39 Darlene's counsel's opening statement to the jury was brief. The Sheraton's opening 

statement tracked through most of the evidence it expected to be presented during the trial. 

It referenced Darlene's and her companion's coming testimony that they had been out 

dancing, socializing and having a few drinks on the evening in question. Counsel also noted 

that Darlene would testify that the total of 3 to 4 rum and Diet Cokes she consumed that 

night--without having any food--did not have anything to do with her fall. Counsel made no 

mention of any coming testimony by Vandenbosch that the radio caller said the woman who 

fell was hunk. 

5/40 The 4-day trial proceeded much as outlined by the Sheraton's counsel in his opening 

statement, including the testimony about Darlene and her companion having a number of 

drinks on the night of her fall. The testimony also rncluded, of course, Vandenbosch's 

inadmissible hearsay testimony referenced above. 

5/41 In closing arguments, Darlene's counsel recounted her testimony that she had been out 

dancing and socializing and having a few drinks on the evening in question. He argued that 

the Sheraton was negligent and that, if the hole had not existed in the carpet, she would not 

12 
have fallen. Darlene's counsel also argued, 

That evening--if she was drunk, and she wasn't--and she stepped in that hole 

and fell over backwards they would still be liable. If she was drunk, that's not 

a defense [to the Sheraton's ncgligencc]. 

Thus, Darlene's counsel addressed the matter of her drinking directly in his closing argument, 

no doubt recognizing that it was necessary to do so because of the testimony of Darlene and 

her companion regarding their activities that evening. 

142 The closing argument by counsel for the Sheraton runs to nearly 30 pages of 

transcript. It centered primarily on the lack of proof advanced by Darlene as to any 

negligence, but also noted that the Sheraton had raised as a defense that Darlene was at fault 

in the fall. Counsel then made a I-sentence reference to the portion of Vandenbosch's 

testimony about which Darlene complains on appeal: "He had heard that there was some 

woman who had been drinking." That was the extent of counsel's reference to Darlene's 

drinking on the night in question and, of course, Vandenbosch's testimony aside, Darlene 

had admitted that she had, in fact, been drinking that night. 

143 Finally, the record reflects that this case went to the jury on a Special Verdict form 

of a relatively common type. The first question thereon was "Were the defendants 

negligent?" The second question, "Was the negligence of the defendants a legal cause of 

Plaintiffs' [sic] damages?" The third question, "Was the Plaintiff negligent'?" As is usual in 

this type of special verdict form, the jury was instructed to answer yes or no to the first 

question and, if it answered "no," to date and sign the Special Verdict. Indeed, that is what 

the jury did: it answered the first question--regarding w-hether the defendants were negligent- 

-"No" and that was the end of the jury's deliberations. In other words, the jury did not reach 

13 
the causation question or the comparative negligence question. 

1/44 I submit that, on this record, it is impossible to conclude that Darlene's substantial 

rights were affected by Vandenbosch's testimony about the remainder of the radio call he 

received. In the context of the other evidence, including Darlene's own testimony about 

drinking that night, Vandenbosch's testimony and defense counsel's 1-sentence reference to 

it in a 30-page closing argument, simply was not--as the Court characterizes it-- 

"inflammatory" and "prejudicial." 

1/45 Moreover, since the jury resolved the case by finding that the defendants were not 

negligent and did not reach the Special Verdict questions to which the extent of Darlene's 

drinking were relevant--namely, causation and comparative negligence--it cannot be said that 

Darlene's substantial nights were affected by the erroneous admission of a small part of 

Vandenbosch's testimony. Indeed, we recently addressed a similar situation in Pcschke v. 

Carroll College (1996), 280 Mont. 331, 929 P.2d 874. There, we concluded that the trial 

court had abused its discretion in admitting a videotape into evidence. We further concluded, 

however, that the plaintiffs substantial rights were not materially affected because the 

evidence went to the issue of causation \qhich the jury had not reached because of its 

threshold finding that the college was not negligent, and held that the error was harmless. 

Peschke, 280 Mont. at 342-43, 929 P.2d at 881. Pesclzke clearly controls the proper 

resolution of issue 1 in the present case. 

746 On issue 1, I would hold that Darlene's substantial rights wcre not materially affected 

by the erroneous admission of hearsay evidence and, as a result, that the error was harmless. 

Thus, I would affirm the District Court's denial of Darlene's motion for a new trial. 

14 
1/47 Finally, as noted above, I also would affirm the District Court's denial of Darlene's 

motion to compel discovery. Our cases holding that trial courts have broad discretion in 

discovery-related matters are legion and require no citation. Darlene simply has not 

established an abuse of discretion by the District Court in that regard. 

748 I would affirm the District Court on all issues raised by Darlene on appeal and I 

dissent from the Court's failure to do so. 
October 30, 1998 

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I herebq certifq that the following certified order was sent by United States mail. prepaid, to the 

following named: 

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MORRISONS MCCARTHY AND BARABAK 

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BY: $-IDeputy '