Bray v. Bi-State Development Corp.

• Decision Date: 22 April 1997
• Docket Number: BI-STATE,No. 69317,69317
• Citation: 949 S.W.2d 93
• Parties: Rosemary BRAY, Plaintiff/Appellant, v.DEVELOPMENT CORP., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 93

949 S.W.2d 93

Rosemary BRAY, Plaintiff/Appellant, v. BI-STATE DEVELOPMENT CORP., Defendant/Respondent.

No. 69317.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 22, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 14, 1997 .

Application to Transfer Denied

Aug. 19, 1997.

Leonard P. Cervantes, Mario G. Silva, Frank Carretero, Cervantes & Associates, St. Louis, for plaintiff/appellant.

Robbye Hill Toft, St. Louis, for defendant/respondent.

CRANE, Presiding Judge.

Plaintiff fell and broke her shoulder, arm, and kneecap while stepping off of a curb in a parking garage. She filed a personal injury action against the garage operator which was submitted on the theory that the garage operator was negligent in failing to adequately light or warn in the curb area. The jury returned a verdict in favor of the garage operator. Plaintiff appeals, claiming error in the admission of a computer-generated chart and the exclusion of light reading testimony from her expert witness on rebuttal. She also asserts plain error in closing argument. We affirm.

On the morning of May 28, 1990, plaintiff, Rosemary Bray, was walking to her car in the Gateway Arch Parking Garage on Washington Avenue. The garage was operated by defendant Bi-State Development Corp. Plaintiff was walking on an elevated area described as a "pedestrian refuge area" which was a step higher than the parking area surface. Plaintiff saw a yellow line which she thought designated a parking space, not a curb. While continuing to walk in the same direction, plaintiff came to the point where the refuge area dropped down to the parking surface, lost her balance, and fell. At the time she fell, every other light was off in the parking garage, including the light above where she fell. She broke her shoulder, arm and kneecap in the fall.

At the time of this accident, it was garage policy that every other high sodium light be turned off during daylight hours. The circuits for the garage lights had been designed so that the operator could turn off every other light in this pattern. In the garage, curbs were painted optic yellow and parking spaces were marked with white lines.

On April 12, 1993, plaintiff filed her fifth amended petition against defendant alleging that it was negligent in not lighting the drop off or marking it with a yellow line. The case was submitted to the jury on the theory that defendant was negligent in failing to adequately light or warn of the drop off or not placing a guard rail around it. The jury returned a verdict in defendant's favor, finding plaintiff 100% at fault.

For her first point on appeal, plaintiff contends that the trial court erred in admitting defendant's Exhibit I, a computer-generated chart which graphically depicted in color light intensity levels in the area of the garage where plaintiff fell, and in allowing defendant's expert witness, Mel Millenbruck, to testify to the chart. She asserts that defendant failed to lay a proper foundation for the admission of Exhibit I.

During the trial, defendant called Mel Millenbruck as an expert witness. Millenbruck is a civil engineer who worked for WVP Corporation, a consulting engineering firm. While Millenbruck was assistant project manager for WVP, he worked on the design of defendant's garage. The design included the garage lighting.

Before Millenbruck testified, plaintiff's counsel conducted a voir dire examination outside the hearing of the jury with respect to Exhibit I, which had been produced to plaintiff prior to trial. After voir dire, the trial court overruled plaintiff's objection to the admission of Exhibit I on the ground that there was insufficient foundation of the validity of the software. After Millenbruck testified to the foundation for Exhibit I before the jury, the trial court admitted Exhibit I into evidence over plaintiff's renewed objection that there was no foundation as to the validity of the program.

Millenbruck testified that Exhibit I was a color computer plot which graphically depicted the intensity of the light levels on the garage floor where plaintiff fell, as predicted by the design software for a situation in which the alternating lights are off. Each color represented a range of foot candles of light on the floor's surface. Millenbruck supervised the preparation of Exhibit I. As an engineer he had the training to make the calculations represented by Exhibit I manually, however, it was not practical to do so because it was a very complex geometric calculation which would have to be repeated for every point resulting in a "tremendous amount of hand calculations."

Ward, Rafferty and Jacobs, lighting manufacturers' representatives, who not only sell to contractors, but also assist engineers with lighting design, produced Exhibit I using a software program created by Lighting Analysts, Inc. Ward, Rafferty and Jacobs generally uses Lighting Analysts, Inc. computer software. As an engineer Millenbruck used and relied on this type of software to make lighting decisions. In doing lighting projects, his engineering firm relies on the manufacturer's representative to produce a computer printout from their software.

Lighting Analysts, Inc.'s software program has photometric data in it which allows it to accurately calculate foot candles based on general parameters and specific data that is put into the program. That lighting software predicts the light level on any given horizontal surface based on the spacing of the lights, the mounting height, the wattage of the bulb, the source, and the nature of the bulb.

Millenbruck provided and had personal knowledge of the data fed into the program, which was based on the bulbs, fixtures and wiring actually in place at the garage on the day plaintiff fell. The data included the mounting height of the luminaries, the spacing in both directions of the luminaries, the wattage of the luminaries, the type of luminary, and the distribution of the lens.

Millenbruck used maintenance factors to account for the presence of dirt and the age of the bulbs and lenses. In accord with standard practice to account for maintenance and depreciation of bulb output, Exhibit I was produced with a maintenance factor of .8 for the high pressure sodium lights and .6 for the florescent lights to account for maintenance and depreciation of bulb output. In preparing the lighting information to be given to the computer, Millenbruck did not allow for the existence of sunlight. Thus, his results showed light levels less than actually present because plaintiff fell in the daytime and the garage did admit some natural light. To verify the computer results, Millenbruck also took actual light measurements in the garage and his readings generally conformed with the computer printout.

Millenbruck testified that Exhibit I showed that the lighting where Bray fell was three to six foot candles. He testified that in his opinion, three to six foot candles provided sufficient lighting for a person to be able to see a curb.

Plaintiff's trial objection to Exhibit I was that there was no adequate foundation for the validity of the software. On appeal she asserts the foundation was inadequate because Millenbruck did not prepare the computer program and did not feed the data into the computer. She contends that the computer program and the results computed from the data were therefore hearsay. She also argues that there was no evidence that the computer program used to prepare Exhibit I was accurate or reliable and that there was no evidence that the lighting levels shown in Exhibit I were substantially similar to the actual lighting levels at the parking garage at the time of the occurrence.

An objection at trial cannot be expanded to raise new issues on appeal. Egelhoff v. Holt, 875 S.W.2d 543, 549 (Mo. banc 1994). "[A]llegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury tried case" Rule 84.13(a). Because plaintiff did not object to Exhibit I on these additional grounds at trial, she waived any error in the admission of Exhibit I on these grounds. Koedding v. Kirkwood Contractors, Inc., 851 S.W.2d 122, 125 (Mo.App.1993). Plaintiff first raised these grounds in her motion for new trial. An objection presented for the first time in a motion for new trial is not timely. Id.

Exhibit I was produced for litigation with a computer and graphically depicts the result of computations made with a computer. An adequate foundation includes proper authentication of such computer-generated evidence. The function of computer programs like the program used in this case " 'is to perform rapidly and accurately an extensive series of computations not readily accomplished without use of a computer.' " Commercial Union v. Boston Edison, 412 Mass. 545, 591 N.E.2d 165, 168 (1992), quoting Schaeffer v. General Motors Corp., 372 Mass. 171, 360 N.E.2d 1062 (1977). Just as experts may base their testimony on calculations performed by hand, they may perform the same calculations using a computer. Commercial Union, 591 N.E.2d at 168. Admissibility of computer simulations is governed by the standard applicable to results of experiments. Richardson v. State Hwy. & Transp. Com'n, 863 S.W.2d 876, 881-82 (Mo. banc 1993), recognizing Schaeffer, 360 N.E.2d at 1067 and Deffinbaugh v. Ohio Turnpike Comm., 67 Ohio App.3d 692, 588 N.E.2d 189, 193-94 (1990).

Whether a proper foundation has been established is primarily a question addressed to the sound discretion of the trial court. Rust & Martin, Inc. v. Ashby, 671 S.W.2d 4, 8 (Mo.App.1984). Missouri courts have not laid out specific foundational requirements for computer-generated evidence of this nature. ¹ We, therefore, survey cases from other jurisdictions to see what general principles have developed and how these tie in with existing Missouri law.

We begin with Commercial Union in which the ...