## Facts

- A January 14, 1984 automobile collision occurred at a Dallas intersection where a stop sign that should have controlled the Donovans’ direction of travel was down.
- The Donovans sued the City of Dallas for negligence, alleging the City failed to replace the stop sign after receiving notice it was missing.
- The jury found that a third party removed the stop sign, the City had actual notice the sign was down, the City failed to correct the condition within a reasonable time, and the failure proximately caused the collision.
- At trial, witness Ladd William Backhaus testified that a middle-aged woman arrived minutes after the collision, appeared visibly upset, and stated she had reported to the City days earlier that the stop sign was down.
- Over the City’s hearsay objection, the trial court admitted the woman’s out-of-court statement as an excited utterance.
- The trial court entered judgment for the Donovans; the City appealed challenging the evidentiary ruling and the legal and factual sufficiency of the evidence.

## Issues

1. Whether the trial court erred by admitting testimony about an out-of-court statement as an excited utterance under Texas Rule of Civil Evidence 803(2).
2. Whether the evidence was legally or factually insufficient to support findings that the City had actual notice the sign was down, failed to replace it within a reasonable time, and that this failure proximately caused the collision.

## Decision

- The court affirmed the judgment for the Donovans.
- The court held the challenged statement was admissible as an excited utterance because it related to the startling event and was made while the declarant was under the stress of excitement caused by the collision scene.
- The court held the evidence was sufficient to support the jury’s findings on actual notice, unreasonable delay in correction, and proximate cause.
- The court overruled all appellate complaints.

## Legal Principles

- A governmental unit is generally immune for claims arising from third-party removal or destruction of a traffic sign unless the plaintiff proves the unit failed to correct the condition within a reasonable time after receiving actual notice.
- An excited utterance is a statement relating to a startling event made while the declarant remains under the stress of excitement caused by that event.
- For Rule 803(2), “relating to” is not limited to a description of the event itself; it can include statements about closely connected antecedent facts that bear on the event’s cause or circumstances.
- Legal-sufficiency review considers evidence supporting the verdict and reasonable inferences favoring it; factual-sufficiency review considers all the evidence while deferring to the jury on credibility and conflicts.

## Conclusion

The court upheld a negligence judgment against the City because the jury could reasonably find the City had actual notice that a stop sign was down and failed to replace it within a reasonable time, and it approved admission of a bystander’s statement as an excited utterance even though it concerned a prior report that explained the accident’s cause.


City of Dallas v. Donovan, 768 S.W.2d 905 (Tex. App.—Dallas 1989)