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 SHERATONHOTEL, Defendants and Respondents

APPEAL FROM: District Court ofthe Thirteenth Judicial District, In and for the County ofYellowstone, The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OFRECORD: 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 Theplaintiff, 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 ofthe defendant, Billings SheratonHotel. Following ajury trial, a verdict was rctuincd for the hotel. Darlene appeals from the judgment entered pursuant to that verdict and from the denial ofher 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 discretionwhen it allowed a witness to testify about out-of-court statements made by an unidentified declarant? 14 2. Did the District Court abuseits discretionwhen itrefusedtoadmit 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 19or20, 1989,Darlene Vincelette fell while entering the Billings SheratonHotel. She and her companion had passed through the outer doors leading tothe hotel lobby andwere crossing over a carpeted entryway. Darlene took a step backward to allow her companion to open one ofthe 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 andthat her condition was the cause ofher 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 ofthe 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 ashearsay,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 offeredto illustratethe testimony of several witnesses regarding the condition ofthe carpet. 

### ISSUE 1 711 Did the District Court abuse its discretion when it allowed a witness totestify about out-of-court statements made by an unidentified declarant? 1/12 We review evidentiary rulings for an abuse ofdiscretion.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'sdetermination 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 ofher 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. 715 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 shewas drunk. He could not remember who placed the radio call, andthe 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 onthe basis that itwas not offered for thetruth ofthe matter asserted, but "n~erely to reflect what was said to him and therefore it's not hearsay." 

## 717 Following theruling. thehotel again elicited testimony fromVandenbosch that he had been told Darlene was drunk. Then, in closing argument, counsel forthe hotel repeated the tcstimony. 718 On appeal, Darlene contends the out-of-court statement was offered to showthat 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 showits effect on the witness's state ofmind 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 asprovided by the rules ofevidence. 

### 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 ofmind. SeeMannix 1: Butte Water

### Co. (1993), 259 Mont. 79, 86, 854P.2d 834,838;Moats TruckingCo v. GallatinDairies (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 companyterminated 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 onthe state of mind of the defendant's employee. Prior to allowing the testimony, the district court cautioned thejuiy that the party's testimony was admitted only for the purpose of showing that the statementswere made, not for proving that they were true. We affirmed the ruling ofthe 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 nobearing on his decision to investigate. The statement servedno other purpose than toprove 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 ofthe same companyregarding the transaction uhich led to his discharge. He argued that the out-of-court statements were offeredtoprove his state ofmind and, therefore, were not hearsay pursuant to ourdecision inMoats. The district court disagreed, and we affirmed on the basis that the statements were, in fact, offeredtoprove his employer's conduct and, therefore, forthe truth of what was asserted. See .Mamix, 259 Mont. at 86-87,854 P.2d at 839. Ti23 Here,thehotel's argumentthat Vandenbosch's testimony was not offered toprowthe 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 toprove 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. Becauseof the inflammatory nature ofthe evidence, and Darlene's complete inabilityto 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 thejudgment ofthe District Court andremand 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 Cowlesv. Slzeeline (1993), 259 Mont. 1, 12-13, 855P.2d 93, 100;Pal~tzer by Diacon v. FurniersIns. 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 ofthe 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 groundsthat 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 ifits probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, misleading thejury, orby considerationsofundue delay, waste oftime, orneedless presentation ofcumulative material. See Rule 403, M.R.Evid. 

### 729 If relcvant, demonstrative exhibits are admissibleto supplement a witness's spoken description ofthe event and to clariff some issue in the case, ifthey are moreprobative than prejudicial. See Codes,259 Mont. at 12, 855 P.2d at 100(citing Palmer, 233 Mont. at522-23, 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 thejury." Cowles,259 Mont. at 13, 855 P.2d at 100 (citing Workmanv. Mcliztyre Const. Co. (1980), 190Mont. 5, 24,617 P.2d 1281, 1291). 1/30 Here, the parties stipulated that the photos were taken seven years afterthe accident. The District Court heard testimony from a witness responsible for cleaningthe carpeting at the time ofthe accident, through whom Darlene had attempted to introducethe 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 ofthe 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 Becausewe have remanded this case for anew trial, we presume that a new discovery schedule will be established and that the parties will have the opportunity to complete anydiscovery they consider necessary. Thcrefore, we deem it unnecessary to decide the discovery issues presented on appeal. 734 We rcvcrse thejudgment of the District Court and remand for further proceedings consistent with this opinion.

Wc Concur:

JusticesJustice 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 itrefused to admit photographs offered as demonstrati\reevidence. 

### I dissent from the opinion onissue 1and, for that reason, 

### I would not remand for a new trial. As a further consequence ofmy 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) ifso,whetherthe admissionofthat 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 affectedby admission ofpart ofVandenbosch's testimony andby the referenceto it in closing argument by defense counsel is based on fartoo limited a review ofthe record before us, a review which would lead the reader to conclude that Vandenbosch's reference was the only testimony regarding whether Darlene hadbeen drinking before her fall atthe Sheraton. Nothing could be further from the truth. 138 Thecontrolling pretrial orderinthiscasereflectsthat Darlene contended the Sheratonand its insurer were negligent and that their negligence resulted in serious and permanent injury toher 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 ofany damages and/orinjuries sustained by Darlene. Finally, they contended that Darlene was negligent and that her negligence contributedtothe

cause ofher damages and/or injuries. The case proceeded to trial on thebasis ofthepretrial order. 5/39 Darlene's counsel's opening statement to thejury was brief. The Sheraton's opening statement tracked through most ofthe evidence it expectedtobe presented during the trial. It referenced Darlene's and her companion's coming testimony that they had been out dancing, socializing andhaving 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 nothave anythingto do with her fall. Counsel made no mention ofany coming testimony by Vandenbosch that the radio caller said the woman who fell was hunk. 5/40 The4-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 shehad 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 12have fallen. Darlene's counsel also argued, That evening--if shewas drunk, and she wasn't--and she stepped in that hole and fell overbackwards they would stillbe liable. If she was drunk, that's not a defense [tothe Sheraton's ncgligencc]. Thus,Darlene's counsel addressed the matterofher drinking directlyinhis closing argument, no doubtrecognizing that it was necessaryto do sobecause of thetestimony 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 alsonoted that the Sheratonhad 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 shehad, 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, ifit answered "no," to date and sign the Special Verdict. Indeed, that is what thejury did: it answeredthe first question--regardingw-hetherthe defendants werenegligent- -"No" and that was the end ofthejury's deliberations. In other words, the jury did not reach 13the causation question orthe 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 ofthe 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-sentencereference to it in a 30-page closing argument, simply was not--as the Court characterizes it-- "inflammatory" and "prejudicial." 1/45 Moreover, since thejury 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 ofissue 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 ofhearsay evidence and, as a result, that the error was harmless. Thus, I would affirm the District Court's denial 

### ofDarlene's motion for a new trial. 141/47 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 discretionby 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 failureto do so.October 30, 1998

CERTIFICATE OF SERVICE I herebq certifq that the following certified order was sent by United States mail. prepaid, to the following named: FRANK B ?AORRISON JR MORRISONS MCCARTHY AND BARABAK PO BOX 1090 WHITEFISH MT 59937-1090 RANDY S LAEDEKE LAEDEKE LAW OFFICE PO BOX 2216 BILLINGS MT 59103-22 16 CALVIN 3 STACEY ATTORUEY AT LA'& PO BOX 1139 BILLlNGS h17 59103-1 139

ED SMITH CLERK OF THE SIJPREME COURT STATE OF 'MONTANA 1, BY: $-IDeputy '