Vol. 70, No. 9, September
1997
Postaccident Statements
by Injured Parties
By Daniel J. La Fave
Self-incriminating statements made by an injured party shortly after
an accident can be powerful medicine in the hands of opposing counsel in
a subsequent lawsuit.1 However, to properly
administer such potent
Failure to master exclusionary rule 904.12 regarding statements
by an injured party can produce harmful side effects to your personal injury
practice, such as surprise motions in limine on the eve of trial. |
evidence in personal injury actions arising under Wisconsin law, trial lawyers
first must address the potentially antidotal provisions of Rule 904.12 -
whether the case ends up in state or in federal court.2
(See Rule 904.12 in the accompanying sidebar.)
On its face, the rule appears to bar all postaccident "statements"
made by an injured party to anyone other than a police officer within 72
hours of the accident - unless the statement is the kind that otherwise
would qualify as a present sense impression, an excited utterance, or one
evidencing a then existing state of mind (that is, if not made by a party).
However, the Wisconsin Supreme Court has concluded that the statute only
bars: 1) statements an adverse party procures from an injured person
for potential use in defending a future claim brought by the injured
person;3 or 2) statements made under circumstances
where the injured party's physical or mental condition was such that he
or she could not intelligently answer questions and protect his or her rights,
no matter who elicited the statements.4 The
rule does not, however, provide a safe harbor for statements made by injured
defendants. 5
Rule 904.12 statements are hearsay statements
As a threshold matter, one must identify any statements made by an injured
party within the protected time frame. Rule 904.12 does not detail what
constitutes a "statement" and the courts have yet to provide any
guidance. However, that term is defined for hearsay purposes as "an
oral or written assertion or ... nonverbal conduct of a person, if it is
intended by the person as an assertion."6
This definition appears to be what the drafters had in mind for Rule 904.12
as evidenced by their comment that, "This rule recognizes that admissions
are not hearsay but draws on the enumerated hearsay exceptions to describe
the kinds of admissions that are not subject to the 72-hour rule."7
Accordingly, if an injured party makes an intentional assertion, either
verbal or nonverbal, within 72 hours after an accident, that assertion is
likely to qualify as a Rule 904.12 "statement." The next step
is to determine whether the postaccident statement violates either the procurement
or incapacitation safeguards of Rule 904.12.
An antiprocurement remedy
Kirsch v. Pomisal effectively illuminates what will or will not
qualify as an improperly "procured" postaccident statement. In
Kirsch the Wisconsin Supreme Court upheld the admissibility of statements
the plaintiff had made to a traffic officer (before there was a statutory
exception) and an acquaintance within 72 hours of the plaintiff's alleged
traffic accident. The court found that both the officer and the acquaintance
were disinterested persons, pointing out that the officer was simply doing
his job in taking the plaintiff's statement and that the plaintiff had volunteered
the statements to his acquaintance. The court concluded that there was no
reason to consider whether the statements fell within the rule's res gestae
exception (essentially the same as the current hearsay-derived exceptions),8 holding that the rule "has no application to
the facts as disclosed by the evidence."9
Thus, if the person eliciting a postaccident statement is simply doing
his or her duty without an eye towards future litigation, then the statement
likely will not be found to be improperly procured. An example of this would
be a medical professional questioning an injured party for the purpose of
medical treatment or diagnosis. And, if the injur
Protecting the incapacitated
When an injured party asserts some sort of physical or mental impediment
as a basis for excluding a postaccident statement, the party must show by
"conclusive" evidence that at the relevant time, he or she lacked
the capacity to make an intelligent statement.
In Musha
v. U.S. Fidelity & Guaranty Co. the plaintiffs, a father and his
minor son, invoked a predecessor to Rule 904.12 to exclude a statement the
son made to a police officer shortly after the son arrived at the hospital
to be treated for injuries he suffered when an automobile struck him while
he was riding his bicycle. The plaintiffs argued that the police officer
exception employed in Kirsch should not apply because of the son's age (13),
the extent of his injuries and pecause he was under "heavy sedation"
when he made the statement.
The court rejected the plaintiffs' argument in light of the officer's
testimony that the boy had appeared lucid and gave competent answers during
questioning. However, the court pointed out that, "If it had been shown
conclusively that the injuries received by the minor plaintiff or the drug
that was administered to him prior to the giving of the statement had such
an effect on the minor that he could not intelligently answer the questions
and protect his rights, then such statement would not be admissible no matter
to whom it was made."10 By making this
qualifying statement, the court seemingly recognized that an injured person's
physical or mental state could be such that it renders his or her statement
inadmissible - even though not procured by an adverse party.
If in Musha the court intended to recognize a truly independent
incapacity remedy for postaccident statements, then limiting it to the 72-hour
postaccident period Rule 904.12 presently covers makes little sense. For
instance, a person severely burned in an automobile accident is likely to
be heavily sedated or otherwise incapacitated well beyond the 72-hour period
covered by Rule 904.12. Instead, it seems more defensible to treat incapacity
as affecting the weight to be afforded a nonprocured statement, not its
admissibility. Of course, in a particularly egregious case the trial court
could exclude statements made while a person is incapacitated as unfairly
prejudicial under Rule 904.03,11 without having
to resort to a creative interpretation of Rule 904.12.
Probing for an exception
If a postaccident statement potentially violates either the procurement
or incapacitation safeguards of Rule 904.12, one must probe further to determine
whether any of the enumerated exceptions to the rule apply. Present sense
impressions, excited utterances or statements of the declarant's then existing
mental state must occur either contemporaneously with the accident or while
the declarant is under the stress of the exciting event. 12
Realistically then, an exception to Rule 904.12 most likely will be found
to apply to statements made immediately after an accident. One such example
is Dixon v. Russell, where the Wisconsin Supreme Court held that statements
made by an injured operator of a concrete mixer to the defendant's foreman
and another person immediately after an accident involving the mixer, that
the accident was the operator's own fault, fell within the prior res gestae
exception. 13
As Dixon demonstrates, the way in which Rule 904.12's hearsay-derived exceptions
have traditionally operated underscores the difficulties an injured party
will face in attempting to apply the incapacity remedy. Absent proof that
the injured party was deranged or severely traumatized by the accident,
damaging, spontaneous statements he or she makes shortly thereafter are
likely to come into evidence.
|
Daniel J. La Fave, Northwestern 1992, is a trial lawyer with the Milwaukee
office of Quarles & Brady. He concentrates his practice in products
liability and personal injury defense.
|
Another exception to Rule 904.12 is for statements made to officers having
the power to make arrests. The Legislature first codified this judicially
recognized exception in 1959. However, this exception has its own exception.
Injured parties who bring personal injury claims against the governmental
entity that employs the officer who heard the postaccident statement may
be able to excise such statements from evidence at trial. Such was the case
in Schueler v. Madison 14 where the
court held that a police officer could not testify as to statements made
to him by the injured plaintiff in a hospital emergency room because the
City of Madison, his employer, was a named defendant.15
This exception to the exception of Rule 904.12(3) seems unlikely to occur
often, but in the right situation may be a factor in deciding whether to
bring a claim against a governmental entity in an accident that also involves
private parties. By doing so, the injured party may be able to inoculate
himself or herself from what otherwise would be an admissible postaccident
statement to a police officer investigating the accident.
Producing copies of "written" statements
Assuming a written postaccident statement by an injured person
otherwise would be admissible, Rule 904.12 further requires that the person
taking or having possession of a copy of the statement provide one within
20 days of an injured party's written request.16
To best assess a personal injury case, a plaintiff's lawyer is well-advised
to request any such statements against likely sources before commencing
a lawsuit.
In turn, prospective defendants need to be alert to such requests, which
may appear in unexpected places, such as in a complaint, and provide a timely
response. Otherwise, a potentially helpful written statement will be excluded.
Conclusion
Postaccident admissions can be truly powerful medicine for defense counsel
trying personal injury cases. However, Wisconsin's unique exclusionary rule
places limitations on administering such potent evidence, affording a potential
antidote for plaintiffs. If lawyers keep the foregoing principles in mind,
they should be able to avoid unpleasant evidentiary complications in handling
a personal injury case.
Endnotes
1 See, e.g., Onujiogu v. United
States, 817 F.2d 3, 6 (1st Cir. 1987).
2 See Larson v. DeVilbiss Co., 454 F.2d
461, 464 (7th Cir. 1971). While the Larson court did not explain its reasoning,
an apparent basis for applying Rule 904.12 in a federal diversity action
would be Federal Rule of Evidence 601, which is the general rule for competency
of witnesses.
3 Kirsch v. Pomisal, 236 Wis. 264, 267,
294 N.W. 865 (1940).
4 Musha v. U.S. Fidelity & Guaranty Co.,
10 Wis. 2d 176, 180, 102 N.W.2d 243 (1960).
5 See Zastrow v. Schaumburger, 210 Wis.
116, 124-25, 245 N.W. 202 (1932).
6 Wis. Stat. 908.01(1).
7 Judicial Council Committee's Note, 59 Wis.
2d at R100 (1974).
8 See Judicial Council Committee's Note,
59 Wis. 2d at R257 ("[t]he term res gestae ... embraces circumstantial
proof that is not hearsay at all, as well as hearsay that is admissible
[as present sense impressions or then existing statements of mind]");
Scrafield v. Rudy, 266 Wis. 530, 532, 64 N.W.2d 189 (1954) ("To be
admissible as part of the res gestae the statement must be deemed the spontaneous
utterance of the speaker, springing out of the transaction itself, and hence
the product of the speaker's mind, prompted by the event and not the result
of deliberation after the event.")
9 Kirsch, 236 Wis. at 268.
10 Musha, 10 Wis. 2d at 180.
11Wis. Stat. 904.03.
12 See, e.g., Zastrow, 210 Wis. at 124-25;
State v. Jenkins, 168 Wis. 2d 175, 189, 483 N.W.2d 262 (Ct. App.
1992); Judicial Council Committee's Note, 59 Wis. 2d at R256 ("the
time element is more narrowly measured under sub. (1) [(i.e., present sense
impressions)] than sub. (2) [(i.e., excited utterances)]"), R260 ("Sub.
(3) [i.e., then existing mental, emotional or physical condition] . is a
specialized version of the present sense impression").
13 Dixon, 156 Wis. 161, 165-66, 145 N.W.
761 (1914).
14 Schueler, 49 Wis. 2d 695, 183 N.W.2d
116 (1971).
15 Id. at 708.
16 Wis. Stat. 904.12(2). |