This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-2495

Jerry Don Gross,

Appellant,

vs.

Clifford Earl Blomstrom,

Respondent.

Filed September 16, 1997

Affirmed

Norton, Judge

Cass County District Court

File No. C0-95-555

Richard H. Breen, Breen & Person, Ltd., 510 Laurel Street, P.O. Box 472, Brainerd, MN 56401 (for Appellant)

Erik J. Askegaard, Askegaard & Robinson, P.A., 206 North Seventh Street, P.O. Box 826, Brainerd, MN 56401 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellant Jerry Don Gross challenges the trial court's denial of his motion for new trial alleging the trial court committed prejudicial error by admitting certain evidence. The court did not abuse its discretion by admitting a witness's testimony regarding speed, medical records that referred to speed, and respondent Clifford Earl Blomstrom's tape-recorded statement made after the accident. We affirm.

FACTS

On September 19, 1994, a motorcycle driven by Gross and a pickup truck driven by Blomstrom collided on Highway 210 in Cass County. The motorcycle hit the truck in the right rear bumper, but neither vehicle left skid marks on the road. There were no eyewitnesses to the accident.

A passing motorist, David Peterson, who drove up to the scene moments after it happened, reported the accident. Minnesota State Trooper Donald E. Kremer arrived at the scene, investigated, and recorded Blomstrom's statement within a half hour of the accident. Kremer testified that Blomstrom was "a little bit shaky" and "a little bit confused" and he smelled alcohol on Blomstrom's breath. Kremer tape-recorded Gross's statement at the hospital, where he sought medical attention for his various bone fractures.

Gross sued Blomstrom for personal injuries. Before trial, Gross filed a motion in limine to exclude the testimony of Peterson. Peterson was to testify that he was traveling at 55 miles per hour on cruise control when Gross drove past him on his motorcycle five to seven miles before the accident site and that Gross had not been driving in an unsafe manner; Peterson would also describe the accident scene. The trial court admitted the evidence, stating that it was "relevant to setting the stage for Peterson's involvement following the accident." The trial court memorandum regarding this testimony stated:

Witness Peterson's testimony that he was traveling 55 miles per hour five miles before the scene of the accident is consistent with the Plaintiff's account. It is not so prejudicial that the probative value was outweighed by any prejudice it might have caused. This is particularly true in light of the expert testimony that was offered.

Gross additionally made a motion in limine to expunge from his medical records all references to speeds of the vehicles. The records stated the motorcycle was traveling at a high speed, mentioning 70 miles per hour. The records do not indicate, and the medical personnel do not recall, who told them the information about speed. The trial court ruled that the parties were "to refrain from any reference or comment as to the specific speed of `70 miles per hour' mentioned in the medical records." The parties could, however, "reference or comment on the statement in the medical records that refers to the `high speed' of the motorcycle." The court offered to allow Gross to create a cautionary instruction. Gross did not.

Gross additionally moved to exclude the statement Blomstrom gave to Trooper Kremer. The trial court initially granted the motion, but before trial the court stated:

I reviewed the officer's testimony, and I'm going to reverse my ruling and allow the statement. Several reasons for the ruling. After reading back the testimony, one is it does leave the jury with some impression of some confusion. And without the statement, it's not possible for the jury to evaluate that testimony or that statement.

The other reason is that in reviewing Rule 801(d)(1), the statement is not hearsay if it's a statement made while the declarant was perceiving the event or condition or immediately thereafter.

And this does fit within that. Mr. Blomstrom, although not testifying at trial, will testify by deposition at which he could have been cross examined, and therefore the statement is not hearsay.

Blomstrom was unavailable to testify at trial because of poor health.

The jury returned a verdict in favor of Blomstrom, finding both Gross and Blomstrom were negligent, but only Gross's negligence caused the accident. The trial court denied Gross's motion for a new trial.

D E C I S I O N

Rulings on evidentiary matters rest within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error."

I.

Gross asserts the trial court abused its discretion by allowing irrelevant testimony of Peterson regarding the speed the motorcycle was traveling. Evidence is relevant, however, if it tends to make the existence of any fact of consequence to the determination of the action more or less probable than that fact would be without the evidence. Minn. R. Evid. 401. We conclude that Peterson's testimony made several facts more probable, including that Gross was not wearing a helmet, that there was a gradual downhill slope and a gradual curve in the road immediately prior to the accident site, and that there were westbound vehicles that Blomstrom may have been waiting to pass before turning as Blomstrom asserted. Peterson's testimony was relevant.

Gross additionally claims that the testimony should not have been admitted because it was too speculative under Janssen v. Neal, 302 Minn. 177, 223 N.W.2d 804 (974). He asserts that no evidence proves that, upon impact, Gross was still driving the speed he had been driving when he passed Peterson.

As a general rule, the determination of admissibility of evidence concerning the manner in which a participant in an accident was driving before he reached the scene of the accident depends on whether there is a high degree of probability that the conduct continued up to the time of the accident. As stated by this court in Atkinson v. Mock, 271 Minn. 393, 396, 135 N.W.2d 892, 894 (1965):

"It is primarily for the trial court to determine whether such evidence has probative value and, unless it is so remote in point of time or space as to be of no probative value and is so prejudicial that in all probability it did influence the outcome of the case, we will normally not reverse."

Janssen, 302 Minn. at 186, 223 N.W.2d at 809. Janssen is distinguishable from the case at bar because the witness here did not offer the testimony to prove that the conduct continued up to the moment of the crash and the extreme nature of the turn in Janssen was not present in this case. Here, the road only curved gradually, which would not necessarily indicate that a vehicle must have slowed, whereas in Janssen the 90-degree turn between where the witness saw the car and where the accident occurred would lead to a presumption that the vehicle's speed changed before the accident. Id. at 186-87, 223 N.W.2d at 809-10. The trial court did not abuse its discretion by admitting the evidence.

II.

Gross contends the trial court abused its discretion by failing to expunge all indications of speed from the medical records. Gross reasons that, because the medical personnel who wrote the records did not recall who provided the information detailing the speed of the motorcycle, no proper foundation existed for admitting the evidence. Rulings made regarding foundation and relevance are questions of fact for the trial court that this court will not disturb absent a showing of abuse of discretion. Wadena v. Bush, 305 Minn. 134, 147, 232 N.W.2d 753, 761 (1975). Hospital records are inadmissible due to lack of foundation unless evidence establishes the identity of the person who made the records and that person's source of information. Id. at 150, 232 N.W.2d at 763. Further, under Minnesota law,

[a] record of an act, condition, or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the source of information, method, and time of preparation were such as to justify its admission.

Minn. Stat. § 600.02 (1996).

Because no evidence established who informed the medical personnel of the speed written in the record, it appears that the foundation was inadequate under Wadena, 305 Minn. at 150, 232 N.W.2d at 763. However, this mistake amounts to no more than harmless error. See Minn. R. Civ. P. 61 (providing that no error in admission of evidence shall be ground for granting new trial unless error affects substantial rights of parties). The evidence regarding speed included in the medical records alone did not affect the outcome of the case because cumulative evidence detailed Gross's speed. Additionally, even if Gross had not been speeding, Gross's statement that he "thought [he] had room and [he] thought maybe [he] was going around [Blomstrom's truck]" was sufficient for the jury to find that his negligence was the cause of the accident. Thus, we conclude the hospital records admission did not affect Gross's rights or the trial's outcome.

Gross additionally asserts that the references to speed in the medical records should have been excluded because they were hearsay.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Minn. R. Evid. 801(c). Minn. R. Evid. 803(6) provides that records of regularly conducted business activity are not excluded by the hearsay rule.

Hospital records are considered within the purview of the business-records exception if they are made in the regular course of business. Entries made in a hospital record are made in the regular course of business if they are germane to medical history, treatment, or diagnosis.

* * * *

As to hospital records, the guarantee of trustworthiness in the records is that the physicians rely on the records to make life and death decisions. Normally, entries in hospital records as to the manner in which the accident occurred serve no medical purpose. No reliance is placed upon them in rendering medical services. Admittedly, a hospital record entry relating to the manner in which an accident occurred could under some circumstances be germane to medical history, treatment, or diagnosis.

Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 233-34, 214 N.W.2d 672, 678-79 (1974) (citations omitted). In resolving the question of whether a record is medically relevant, , the Minnesota Supreme Court has analyzed (1) whether what the hospital recorded was relevant to a correct diagnosis of the injuries and proper treatment, (2) the location, kind, and extent of the injured party's injuries, and (3) the types of treatment contemplated. Wadena, 305 Minn. at 145-46, 232 N.W.2d at 760-61.

In this case, the speed at which the motorcycle was traveling prior to the accident may have been relevant to a proper diagnosis of Gross's injury and to discovery of the best method of treatment. Although Gross was alert and conscious, he had just suffered a severe trauma to his head and had blood coming from his ear. It is plausible that the motorcycle's velocity would give the medical personnel some indication of how severe the trauma was to his head and lead to more appropriate treatment. The trial court did not abuse its discretion by determining that the notation regarding high speed was germane to diagnosis and treatment and, thus, admissible under the business records exception to the hearsay rule.

III.

Gross asserts the trial court abused its discretion by admitting Blomstrom's recorded statement under Minn. R. Evid. 801(d)(1)(D) because Blomstrom was unavailable at trial. Regardless of the statement's admissibility under rule 801(d)(1)(D), we conclude the statement was admissible under Minn. R. Evid. 804(b)(1), which provides that an unavailable declarant's statement is not hearsay if:

In a civil proceeding testimony [is] given as a witness * * * in a deposition taken in compliance with law in the course of the same or another proceeding, [and] if the party against whom the testimony is now offered * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Gross's counsel was present at Blomstrom's deposition and had the opportunity to cross-examine him at that time. The trial court did not abuse its discretion by admitting Blomstrom's recorded statement.

Affirmed.