Generally the jury decides issues of fact. However, in Dalli v. McGreen, the court stated that admissibility of an excited utterance is “made in the first instance by the trial court.” There, the decedent was allegedly injured when he slipped and fell on ice while backing away from defendants’ dog. Prior to providing any sworn testimony, the decedent died of unrelated causes. Defendants moved for summary judgment arguing that plaintiff would be unable to establish a case because the only evidence was inadmissible hearsay from plaintiff derived from a telephone call from the decedent (her husband) just after the fall. In that call, the decedent told plaintiff, “he was trying to make a delivery and he was approached by a dog that he wasn’t sure was friendly or not, he was backing up, misstepped on the ice and fell.”
In its evaluation, the court noted, “An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication.” The court stated that it was up to the court to determine whether at the time the statement was made, the declarant was under the stress of the excitement. Among the factors considered was the period of time between the startling event and the out-of-court statement, but there was no definite or fixed period of time within which the declaration must have been made. Since the decedent called plaintiff immediately after the accident, the court found that the statement was admissible under the excited utterance exception. That said, even allowing for the admission of the excited utterance, the decedent’s statement that he “misstepped” while backing up did not identify where the accident occurred or the cause, and the decedent’s statement that he was unsure if the dog was friendly or not mitigated against a finding that the dog had vicious propensities. As such, the court found that even assuming that decedent’s statement was admissible, defendants demonstrated an unrebutted entitlement to judgment as a matter of law dismissing the action, as plaintiff could not establish their liability.
http://www.nycourts.gov/reporter/3dseries/2012/2012_51594.htm
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