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Mills v. Owens-Illinois3/28/2003
al., Arizona Practice Law of Evidence § 804.2 (4th ed. 2000); see also State v. Hughes, 120 Ariz. 120, 125, 584 P.2d 584, 589 (App. 1978) (dying declaration admissible "because of the supposed lack of motive to misstate and . . . is equivalent to a statement under oath.").
The rule first requires that the declarant believe that death is "imminent." The American Heritage Dictionary defines "imminent" as " bout to occur." American Heritage Dictionary 643 (2d college ed. 1982). In other words, the declarant must speak "with the consciousness of a swift and certain doom." Shepard v. United States, 290 U.S. 96, 100, 54 S. Ct. 22, 24, 78 L. Ed. 196, ___ (1933). Fear or belief that illness will result in death is not sufficient; the declarant must believe death is near at hand. State v. Buggs, 581 N.W.2d 329, 335 (Minn. 1998). The declarant's belief that death is imminent may be shown by his express language or inferred from the surrounding circumstances. See State v. Adamson, 136 Ariz. 250, 254-55, 665 P.2d 972, 976-77 (1983).
Here, Arthur was aware that his illness was terminal and that he would die "soon." He stated that he would rather die at home than in a hospital. But neither his statement nor anything else in the record indicates that he believed his death was about to occur or that his death would be "swift and certain." Shepard. He had lingered for months since the original diagnosis. He had been hospitalized a few weeks before the statement to remove fluid from his lungs and had problems breathing "sometimes." He testified that he continued to take various medications, which would have held no benefit for a person on his death bed. Moreover, Arthur actually scheduled his "dying declaration," giving his statement at the appointed time and place with four lawyers and a court reporter in attendance. None of this evidence indicates that he believed his death was "imminent." Ariz. R. Evid. 804(b)(2).
Mills points out that, within a day of his statement, Arthur became comatose and died eleven days later without regaining consciousness. Thus, she correctly states that Arthur's statement was, in fact, made on his deathbed. But nothing in his statement indicates he believed that to be the case. And it is the declarant's belief that provides the reliability required to admit the hearsay statement. See Hughes, 120 Ariz. at 125, 584 P.2d at 589; see also State v. Liggins, 725 S.W.2d 75, 76 (Mo. Ct. App. 1987) ("It is the impression of almost immediate death rather than the rapid succession of death which renders the statement admissible.").
The trial court did not abuse its discretion in excluding Arthur's statement because Mills failed to show Arthur believed his death was imminent. We therefore need not consider whether Arthur's statement met the remaining requirements of Rule 804(b)(2).
Mills concedes that she lacks any other, admissible evidence that Arthur was exposed to Owens-Illinois's product. Accordingly, the trial court did not err in granting summary judgment. See Portonova v. Wilkinson, 128 Ariz. 501, 502, 627 P.2d 232, 233 (1981) (Evidence produced in opposition to motion for summary judgment "must be admissible at trial."); see also Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).
The trial court's order granting summary judgment in favor of Owens-Illinois is affirmed.
JOSEPH W. HOWARD, Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
M. JAN FLÓREZ, Judge
Page 1 2 Arizona Personal Injury Attorneys
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