Nebraska Supreme Court rules that ‘excited utterance’ of woman with dementia is admissible

LINCOLN — The Nebraska Supreme Court ruled Friday that the “excited utterance” of an elderly woman was admissible in court, even though she had been diagnosed with dementia.

The ruling came in a lawsuit involving a broken hip suffered in 2015 by a 90-year-old woman, Arlene Pantano, who claimed that she tripped and fell on an entryway rug at a Village Inn in Omaha.

Pantano died before her lawsuit went to trial, but her three children were allowed to testify about what their mother had told them shortly after the fall: that she had tripped on an entryway rug. A daughter testified that Pantano had used her hands to describe what tripped her — an abnormality, or fold, in the rug.

Pantano’s estate won the lawsuit and was awarded $195,000.

But the owner of the restaurant — American Blue Ribbon Holdings — appealed, claiming, among other things, that the statements made by Pantano’s children were hearsay and should not have been allowed at the trial.

The Supreme Court, in an 11-page ruling written by Chief Justice Mike Heavican, disagreed.

Secondhand statements, or hearsay, are typically not admitted in a trial.

But there is an exception for an “excited utterance” — a statement made under the stress of a “startling event.”

The restaurant owners disputed that the slip-and-fall was a startling event and also challenged the reliability of Pantano’s statements, citing the fact that she had been diagnosed with dementia.

But the high court ruled that Pantano had made her statements shortly after her fall, while she was crying and in pain, thus qualifying as an excited utterance. The court also rejected that her statements were unreliable.

“A person suffering from dementia is still able to experience a startling event and react to that event accordingly,” Heavican wrote.