Presents from 'Round Back of the Tree

As we leave the holiday season behind, we notice that the Court of Criminal Appeals left two gifts behind the tree to lawyers who practice personal injury law on behalf of plaintiffs. These are unusual gifts from an unusual source, but they have the propensity to impact tort lawyers and their clients.

The first gift is State v. Hall,[1] where the court held that a trial judge did not err in admitting a 911 call that was made while the defendant was breaking into a house and attacking a victim and continued after defendant left the house. The 911 tape of the victim's call was admitted into evidence under the excited utterance exception to the hearsay rule set forth at Tenn. R. Evid. 803(2).

An "excited utterance" is "[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."[2] The rationale for admitting an excited utterance is that "it is likely there was a lack of reflection " and potential fabrication " by a declarant who spontaneously exclaims a statement in response to a startling event. ... Second, ordinarily the statement is made while the memory of the event is still fresh in the declarant's mind. This means that the out-of-court statement about an event may be more accurate than a much later in-court statement."[3] The Hall court rejected the criminal defendant's argument that the portion of the tape recorded after the defendant left the house was not covered by the exception, noting "there is no requirement that the cause of the startling event still be present or that the startling event still be ongoing " only that the declarant still be under the stress or excitement from the event."[4]

Can you see how this present can be used to support a case doomed to fail on defendant's motion for summary judgment? No? The second case provides another hint.

In State v. Craft[5] the Court of Criminal Appeals held that a 911 call by a witness reporting a car accident was properly admitted as an excited utterance in a prosecution for vehicular homicide. The court said that the witness's observation of the automobile crash qualified as a startling event sufficient to trigger the excited utterance exception. The court noted that its review of the 911 recording demonstrated the witness's distress during the call.

Do you need a third hint to figure out how the reasonably prudent plaintiff's lawyer can use these gifts? Here it is: Assume that Smith is driving a white car and that Jones is her passenger. Smith is forced off westbound Highway 100 in Hickman County at about 10 p.m. by a black truck driven at a high rate of speed that leaves the scene and was never identified. There are no known third-party witnesses to the wreck. Although no contact occurred between the vehicles, Smith was forced to take reasonable evasive action to avoid a collision with the black truck, but lost control and flipped her car in a deep ditch. Smith and Jones are both badly hurt, but Jones is able to place a 911 call for help. Do Smith and Jones have a case?

Smith and Jones cannot sue the driver of the black truck because the driver was not identified. Jones could sue Smith but will lose because Smith acted reasonably when confronted with a sudden emergency not of her own making.[6]

Can Smith and Jones assert John Doe claims against their uninsured motorist carriers? No, because they do not have clear and convincing evidence of negligence of John Doe provided by someone outside of the vehicle as required by Tenn. Code Ann.  § 56-7-1201(e)(1)(B).[7] Smith and Jones have no claim.

Now, assume that Smith's lawyer gets a copy of the 911 call log and data at the time of the wreck. Jones' call is there[8] but there is another 911 call from an unidentified caller that begins at 9:59 p.m. on the date of the wreck. Here is a summary of the call: "I am traveling west on Highway 100 in Hickman County. I was almost forced off the road by a black truck traveling at a high rate of speed. I thought I was going to be killed. I am trying to get the license plate but I am having trouble keeping up with him. He is weaving " I think he is drunk. Oh no, the idiot just tried to pass a white car and then swerved back and cut him off. The white car flipped and just left the road. I am going to try to get a license plate. Call the police and an ambulance " the white car is near Burning Stump Road. Gotta go."[9] The caller was never identified.

The gifts provided in Hall and Craft breathe life into our hypothetical case. The proof of John Doe's fault is hearsay, but our gift cases tell us that a judge may determine that the statements are admissible as excited utterances. However, does the proof rise to the level of clear and convincing evidence under the John Doe portion of the UM statute for John Doe claims?[10]

Let me put it this way: We have an independent witness who made a prompt report of reckless behavior that he personally observed as it was occurring. He was at personal risk shortly before the call was made. True, the witness cannot be cross-examined, but the reasons supporting the excited utterance exception to the hearsay rule itself lend strong support to the probative value of the statement. Thus, assuming Jones and Smith were alcohol- and drug-free at the time of the wreck and an examination of the vehicle shows no defects that could have caused the wreck or demonstrate excessive speed, the case appears to be very strong.

While a proponent of the 911 call must admit that total reliance on the 911 call to make a UM case is not ideal to prove fault of John Doe, one must ask this question: "what evidence supports a contrary conclusion?" That is, where is there any other proof of fault?

As this holiday season wraps up, remember that some of the best gifts come from unexpected sources, often hidden behind the tree.

Notes

  1. 2010 WL 571790 (Tenn. Crim. App. Feb. 18, 2010).
  2. Tenn. R. Evid. 803(2).
  3. State v. Stout, 46 S.W.3d 689,699 (Tenn. 2001) (citations omitted), superseded by statute on other grounds as stated in State v. Odom, 137 S.W.3d 572 (Tenn. 2004).
  4. 2010 WL 71790 at *6.
  5. 2010 WL 3365914 (Tenn. Crim. App. Aug. 26, 2010).
  6. McCall v. Wilder, 913 S.W.2d 150, 157 (Tenn. 1995) (the law of sudden emergency is explained).
  7. See also Fruge v. Doe, 952 S.W.2d 408 (Tenn. 1997).
  8. This is an important fact. A condition precedent to a successful John Doe claim is demonstrating a reasonable effort by the insured to report the claim to law enforcement. Tenn. Code Ann.  § 56-7-1201 (e)(1)(B)(2) .
  9. I fully realize the call in an actual case may not be so pro-plaintiff. Lawyers are permitted to dream, aren't they?
  10. Tenn. Code Ann.  § 56-7-1201 (e)(1)(B).

John A. Day JOHN DAY is a trial lawyer in Brentwood. He represents plaintiffs in auto, truck, and all other types of tort cases and is the author of Day on Torts: Leading Cases in Tennessee Tort Law.