COURT OF APPEALS AFFIRMS TRIAL COURT’S EXCLUSION OF TWO-YEAR-OLD AFFIDAVIT AND ADMISSION OF PHOTOGRAPH OF ACCIDENT SCENE

In re Estate of David MacDonald
Dallas Court of Appeals, No. 05-10-01358-CV (August 13, 2013)
Justices Bridges (Opinion), Lang, and Richter

The Court of Appeals affirmed a trial court’s judgment awarding damages for loss of consortium and mental anguish to the father of a deceased teenage girl. The court upheld the trial judge’s decision excluding an affidavit from the daughter because the affidavit was too removed in time from the events at issue to be relevant or to fit within a hearsay exception. The appeals court also upheld the trial judge’s admission of a photograph of the daughter at the accident scene and concluded there was legally and factually sufficient evidence to support the damage award.

John Kidd’s daughter, Laurenne, was killed when the car that her stepfather, David MacDonald, was driving rolled while he was trying to pass a tractor-trailer. MacDonald was also killed, and Kidd asserted negligence claims against MacDonald’s estate. During trial, MacDonald’s estate offered into evidence an affidavit executed by Laurenne two years before her death. In the affidavit, Laurenne said she wanted to live with her mother, in part because domestic disturbances between Kidd and his wife made her fearful. MacDonald’s estate offered the affidavit to show Kidd had a poor relationship with Laurenne, thereby negating Kidd’s claim for damages for loss of companionship. The trial court excluded the affidavit, finding it was hearsay and irrelevant. Separately, Kidd offered a photograph of Laurenne lying in the road after the accident, and the trial court admitted the photograph over the objection of MacDonald’s estate.

The jury found MacDonald’s estate 80% liable and awarded damages for past and future loss of companionship and society, past and future mental anguish, and funeral and burial expenses. The estate complained on appeal of the two evidentiary rulings and also challenged the legal and factual sufficiency of the evidence to support the damages awarded.

The Court of Appeals first considered the exclusion of Laurenne’s affidavit and concluded the affidavit did not fall under the hearsay exception for a statement of then-existing state of mind because the incident recounted in the affidavit occurred two days before the affidavit was signed. The court also agreed with the trial judge that the affidavit was irrelevant because it was nearly two years removed from the time of Laurenne’s death.

The Court of Appeals also upheld the trial judge’s admission of the photograph of Laurenne’s body. Kidd testified that the photograph was the “lasting image” he had of Laurenne and that he suffered mental anguish because of his worries that Laurenne suffered. The court concluded the photograph was relevant to the issue of Kidd’s mental anguish.

Finally, the court reviewed the record and concluded it showed Kidd was a loving father who cared for Laurenne from her infancy until she was sixteen years old, when she left to live with her mother, and that he continued to be involved in her life after that. The court considered this evidence sufficient to support the jury’s award of damages for Kidd’s loss of consortium and mental anguish following Laurenne’s death. Accordingly, the Court of Appeals affirmed the judgment in its entirety.

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