Moore v. Robert Blackwell & Farmers Ins. Co.

Decision Date07 April 2014
Docket NumberNo. 109,685.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,109,685.
Citation325 P.3d 4
PartiesTerry MOORE, individually and as next friend of Jerrit Moore, a minor, Plaintiff/Appellant, v. Robert BLACKWELL and Farmers Insurance Company, Inc., Defendants/Appellees.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

OPINION TEXT STARTS HERE

Appeal from the District Court of Cleveland County, Oklahoma; Honorable Stephen W. Bonner, Trial Judge.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

David L. Smith, David L. Smith, Attorney at Law, Oklahoma City, OK, for Plaintiff/Appellant.

Phillip P. Owens, II, Chris Harper, Inc., Edmond, OK, for Defendant/Appellee Robert Blackwell.

Paul B. Middleton, Dobbs & Middleton, Oklahoma City, OK, for Defendant/Appellee Farmers Insurance Company, Inc.

JANE P. WISEMAN, Judge.

¶ 1 Plaintiff Terry Moore, individually and as next friend of Jerrit Moore, a minor, appeals a judgment entered in Defendants' favor resulting from a jury verdict rendered on April 11, 2011, in favor of Defendant Robert Blackwell. Having reviewed the record and pertinent law, we reverse and remand for further proceedings.

FACTS

¶ 2 According to Plaintiff's appellate brief, on September 1, 2007, Jerrit Moore, then a 12 year-old boy, was walking with a friend along an I–35 service road in Norman, Oklahoma. The boys were initially walking on the road against traffic, but because of an approaching hill, they decided it would be safer to cross “the center line to walk with the traffic, with the intent of returning to the other side of the road once they negotiated the hill.” Because it was dark, only the moonlight and vehicle headlights illuminated the area in which they were walking. While driving on the service road, Robert Blackwell came upon the boys before he saw them, slammed on the brakes, and swerved to the left. Blackwell struck Jerrit Moore injuring him.

PROCEDURAL BACKGROUND

¶ 3 Plaintiff, Jerrit Moore's father, filed this negligence action against Defendants claiming: “The cause of the crash was the negligence of Robert Blackwell. As a direct and proximate cause of Robert Blackwell's [negligence], the plaintiffs have and will incur medical treatment and bills, suffered personal injury and been damaged in an amount in excess of Ten Thousand Dollars ($10,000).” Plaintiff also asserted that at the time of the accident, Defendant Farmers had a policy of uninsured/underinsured motorist coverage in force and effect in favor of the Plaintiffs for injuries received and caused by the negligence of an uninsured or underinsured motorist.”

¶ 4 Blackwell filed an answer denying any negligence on his part and stating:

This Defendant admits that on September 1, 2007, he was traveling on Interstate 35 service road in a legal and lawful manner when without notice or knowledge, two young men/minors were walking down the middle of the lane of traffic occupied by this Defendant, of course they were not wearing any type of reflective clothing, had no lights, had no warning, for which said minors, the Plaintiff Jerrit Moore, was negligent in common law negligence per se which was the proximate cause and sole cause of this accident.

¶ 5 Farmers Insurance Company, Inc., answered denying the allegations against Blackwell, alleging Jerrit Moore was negligent, and confirming the existence of the uninsured/underinsured policy described above. Farmers later moved to bifurcate the claims asserted against it and asked the trial court to exclude at trial any mention of Farmers or the existence of insurance. Farmers agreed not to participate in the trial and to be bound by the jury's verdict.

¶ 6 During trial, Plaintiff called fact witnesses Defendant Blackwell, Terry Moore, Jerrit Moore, and Phillip Cornelius, the friend walking with Jerrit Moore at the time of the accident. Defendant Blackwell then called Michael Thomson, the investigating officer, and Terry Harrison, an accident reconstructionist. Plaintiff objected to Blackwell's witnesses testifying as to fault or causation.

¶ 7 At the conclusion of trial, the jury found in favor of Defendant Blackwell. As a result, the jury's verdict in favor of Blackwell extinguished Plaintiff's claims against Farmers. The trial court entered judgment for both Defendants based on the jury's verdict and granted Blackwell “reimbursement of costs in the amount of $1,345.22 plus statutory interest and costs.”

¶ 8 Plaintiff brings this appeal from the judgment in Defendants' favor entered as a result of the jury verdict.

STANDARD OF REVIEW

¶ 9 “Rulings concerning the admission of evidence are measured against the abuse of discretion standard.” Holm–Waddle v. William D. Hawley, M.D., Inc., 1998 OK 53, ¶ 5, 967 P.2d 1180, 1182. We review a trial court's ruling on the admissibility of expert opinions on an abuse of discretion standard. Belle Isle v. Brady, 2012 OK CIV APP 99, ¶ 24, 288 P.3d 259, 266 (citing Christian v. Gray, 2003 OK 10, ¶ 42, 65 P.3d 591, 608). “An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895 (emphasis omitted).

¶ 10 “The test of reversible error in instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered, if the alleged errors had not occurred.” Johnson v. Ford Motor Co., 2002 OK 24, ¶ 16, 45 P.3d 86, 92–93.

ANALYSIS
I. Expert Testimony

¶ 11 Plaintiff argues the trial court abused its discretion in allowing, over repeated objections, Defendant's expert witnesses, Michael Thomson, the investigating officer on the day of the accident, and Terry Harrison, Defendant's accident reconstruction expert, to testify on issues that should have been reserved for the jury.

¶ 12 Plaintiff initially filed a motion in limine on March 29, 2010, and then an amended motion in limine on January 13, 2011, seeking to exclude such testimony. The trial court overruled these motions on January 18, 2011. When the case was subsequently reassigned to another judge, Plaintiff re-urged his motion to the new judge who overruled the renewed motion on April 8, 2011. At the beginning of trial on April 11, 2011, Plaintiff requested and was granted a continuing objection to Harrison's testimony “to every question that is asked and answered by that expert that is nonscientific.” On the second day of trial, Plaintiff reurged his objection to Harrison's testimony before he testified. The trial court granted Plaintiff a “standing objection” to the “limited questions” of “causation and negligence.”

¶ 13 Plaintiff on appeal asserts no expert testimony is necessary in this case on these issues as it is a “simple automobile-pedestrian accident.” Plaintiff contends:

No scientific evidence is required for the jury to make a determination of whether or not these individuals, [Blackwell] was negligent in operation of his vehicle, or whether [Jerrit Moore] acted prudently, based upon his age and experience, or whether he acted in negligent fashion. Expert testimony was not needed, and did not assist the trier of fact.

He primarily relies on the Oklahoma Supreme Court case of Gabus v. Harvey, 1984 OK 4, 678 P.2d 253, to support his argument that expert witnesses may not offer opinion testimony on the issues of negligence and the cause of a collision and the allowance of such opinion testimony is reversible error.

¶ 14 In Gabus, a negligence case also arising out of an automobile-pedestrian accident, a party sought to introduce an investigating police officer's opinion as to what caused the accident. The trial court allowed its introduction, and the officer testified that the pedestrian/plaintiff failed to yield the right of way to the defendant's moving vehicle. Id. at ¶ 5, 678 P.2d at 254. The plaintiff's counsel moved for a mistrial, asserting that the officer's opinion invaded the province of the jury because it determined the ultimate issue of fault.” Id. at ¶ 6, 678 P.2d at 254. The trial court denied the motion and the trial continued. Id. The jury found the plaintiff to be 75 percent negligent and the defendant, 25 percent negligent. Id.

¶ 15 The Oklahoma Supreme Court reversed the judgment resulting from the jury verdict and remanded for a new trial. Id. at ¶ 30, 678 P.2d at 257. The Court based its holding on provisions of the Oklahoma Evidence Code, including 12 O.S.1981 § 2704 which stated: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Id. at ¶ 10, 678 P.2d at 255. The Court reviewed § 2704 in conjunction with § 2702, which provided that a qualified expert witness may testify in the form of an opinion [i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” 1Id. at ¶ 13, 678 P.2d at 255. Pursuant to § 2702, “The test ... is usefulness. Will the expert testimony assist the trier of fact? If not helpful, then expert conclusions or opinions are inadmissible.” Id. at ¶ 16, 678 P.2d at 255.

¶ 16 In reviewing the admitted evidence under these statutory provisions, the Gabus Court ultimately held the expert's opinion on the cause of the collision did not assist the jury to understand the evidence because the opinion “concerned facts that could be readily appreciated by any person who drives an automobile or crosses streets” and [n]o special skill or knowledge was needed to understand these facts and draw a conclusion from them.” Id. at ¶ 18, 678 P.2d at 256. The Court further held that “where the normal experiences and qualifications of lay[ ] jurors permit them to draw proper conclusions from the facts and circumstances, expert conclusions or opinions are inadmissible. The expert conclusion here was not helpful and should...

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