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Monday, January 20, 2020

Nebraska Supreme Court reinstates $260K award in slip-and-fall lawsuit against American Blue Ribbon


By Payton Kuhn | Jun 3, 2019


LINCOLN, Neb. (Legal Newsline) – The Supreme Court of Nebraska has modified a lower court's ruling after an appeal filed by American Blue Ribbon of a verdict in favor of a woman who fell and sustained a broken hip at one of its restaurants.

Arlene Pantano and her husband, Anthony, had originally filed the lawsuit in 2015, alleging damages for injuries and loss of consortium for the injury. While the two passed away the following year, the lawsuit was taken up by the couple’s estates.

In a trial court’s original decision, the “jury found for the estates in the total amount of $260,000, but found Arlene was 25 percent negligent in the cause of her fall,” the ruling states, and the court reduced the judgment to $195,000.

In the appeal argued to the Supreme Court, American Blue Ribbon argued that the trial court erred in “overruling its hearsay objections” to the testimonies of the Patanos’ three children, admitting evidence that found the company culpable for unpaid medical bills, and denying its motion for summary judgment, among others.

The Patanos’ estates argued in a cross-appeal that the trial court erred in overruling their motion to strike the defendant's comparative negligence affirmative defense.

In the Supreme Court’s official ruling issued May 17, Chief Justice Michael G. Heavican analyzed whether statements made by the Patanos were admissible under the utterance exception and whether the district court erred in instructing the jury with regard to the defendant's affirmative defense of comparative negligence.

Heavican found that the defendant’s hearsay claims regarding Arlene Patano’s actions directly following the incident fell within the excited utterance exception and was still under the influence of the startling events that took place when she made statements to her children. 

American Blue Cross had attempted to offer evidence to the court that Arlene Patano suffered from dementia, which would have “affected the admissibility of her statements as excited utterances,” the ruling states. Heavican found no validity to these claims and struck down the excited utterance claim.

The estates argued in a cross appeal that district court erred in overruling their motion to strike and instructing the jury on comparative negligence.  

"Having found that the cross-appeal on the issue of comparative negligence has merit, we conclude that the district court erred in instructing the jury with regard to comparative negligence and in providing a verdict form allowing for a deduction for Arlene’s negligence. The judgment in favor of the estates should not have been reduced by 25 percent, and we therefore modify the judgment to $260,000," Heavican wrote.

Justice Heavican was joined by justices Stephanie F. Stacy, William B. Cassel, Jonathan J. Papik, Jeffery J. Funke and John R. Freudenberg. Justice Lindsey Miller-Lerman did not participate in the court’s ruling.

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