Brown v. Tucker
| Decision Date | 05 July 2016 |
| Docket Number | A16A0345,A16A0344 |
| Citation | 788 S.E.2d 810,337 Ga.App. 704 |
| Parties | Brown v. Tucker. Tucker v. Brown. |
| Court | Georgia Court of Appeals |
Denise Diane Hoying, Daniel Calhoun Prout Jr., Atlanta, for Appellant.
Ben C. Brodhead III, Jennifer Stalvey Mundy, for Appellee.
Tisha Tucker was a passenger in a pickup truck driven by Tammy Brown when Brown struck a tractor-trailer rig parked by the road. Tucker sued Brown for her resulting injuries, and Brown identified the tractor-trailer driver as a non-party against whom the jury should apportion fault. After trial, the jury returned a verdict of $2 million, apportioning 40 percent fault to the tractor-trailer driver and 60 percent to Brown. The trial court subsequently awarded Tucker an additional $533,180 in attorney fees and expenses of litigation under the offer of settlement statute, OCGA § 9–11–68 (d).
Both parties have appealed. Brown enumerates seven errors related to evidentiary issues, jury charges, and the court's response to a jury question regarding apportionment. Tucker enumerates three errors, all of which relate to her contention that the trial court should have granted her motion for a directed verdict of 100 percent liability against Brown. For the reasons that follow, we affirm.
The evidence before the jury included the following: Passenger Tucker called Driver Brown on cross-examination, and Brown admitted that, before the collision, the sun had been in her eyes so badly that she could not see in front of her; that she did not put her visor down, shield her eyes with her hand, or don sunglasses, and that she continued driving for some distance without being able to see where she was going. She further admitted that she first saw the tractor-trailer after she hit it, and that if she had seen it, she could have avoided it. The jury then made a site visit.
Next, an eyewitness to the collision testified that he saw the tractor-trailer pulling out of a neighbor's driveway and heard it sputtering “like something was wrong with the motor.” He heard the tractor cut off, saw where the rig was parked, looked down, and looked up to see Brown's pickup truck hit the back end of the flatbed trailer. According to the witness, the back tire was on the fog line and the back end of the trailer was sticking about a foot and a half into the road. The tractor would not start, and the witness testified that, although a driver paying attention could have avoided hitting the trailer as it sat, he retrieved his bulldozer and pushed the back end of the trailer completely out of the road anyway because the wrecked pickup truck created a distraction.
A second witness testified that she heard the tractor's engine making “spitter spatter” noises as it drove up the driveway across the street and pulled onto the side of the road. The driver got out, the witness turned away, and one to five minutes later she heard a “big boom” when Brown's pickup hit the trailer. She testified that the trailer had been protruding only a few inches into the road before it was moved.
A third witness testified that he heard the collision and ran out to assist the pickup truck occupants and assess the scene. Brown had stepped out of the truck but her two passengers were still inside, and after the witness wrenched the passenger door open, Tucker's arm fell a little and “blood poured out of the jacket” she was wearing. The witness wrapped his shirt around her arm and waited with both passengers until the ambulance came. He testified that a small section of the trailer was a few inches over the fog line into the road when Brown hit it.
Tucker testified that Brown had been driving Tucker back to her mother's house with Brown's daughter-in-law, Brooke Roberson, sitting between Brown and Tucker. Tucker noticed the parked tractor-trailer ahead on the side of the road ahead of them but was looking out the window daydreaming when Brown hit it. The EMT who treated Tucker at the scene and the surgeon who operated on her lacerated finger, broken arm, and dislocated elbow both testified about Tucker's injuries.
After Tucker rested her case, the defense called three deputy sheriffs who had responded to the scene, Roberson, and the state trooper who was in charge of investigating the collision. The trooper testified about his training and experience and his conversations with Brown and Lee Patterson, who had identified himself as the driver of the tractor-trailer rig, which was owned by someone else. After describing his physical investigation, the trooper concluded that in his opinion the tractor-trailer had not been parked completely off the roadway when Brown hit it and that Brown had not been speeding. Brown was not called to testify on direct.
1. Brown argues that the trial court erred in granting Tucker's motion in limine to exclude the state trooper's opinion testimony that the cause of the collision was the tractor-trailer's protrusion into the roadway, rather than Brown's ability to see where she was going. After the trooper testified about his investigation, the jury was excused and Brown made a proffer of the trooper's testimony. Brown asked the trooper, “Combining all the factors you talked about so far, ... were you able to reach a conclusion in your mind as to what the cause of the accident was?” The trooper answered yes, and this exchange followed:
Tucker's objection to this proffered testimony was that “opinions such as [‘]if you don't see something in the roadway, you're going to hit it[’] are certainly something that's within the [ken] of the jury,” and that “it was not beyond the jury's ability to weigh the position of the truck versus the effect of the sun.” The trial court agreed. It reasoned that the evidence presented during the trial clearly presented the question of how much the tractor-trailer in the roadway and how much the sun in Brown's eyes caused or contributed to the collision. Sustaining Tucker's objection, the court found that the last questions quoted above clearly went to the ultimate issue in the case, which was as easily determined by the jury as by the trooper.
We review a trial court's evidentiary determinations only for abuse of discretion. Whitlock v. Moore , 312 Ga.App. 777, 779, 720 S.E.2d 194 (2011). Brown argues that the trial court abused that discretion by sustaining Tucker's objection to the proffered opinion testimony, which she argues was admissible because it was based on both the trooper's examination of physical evidence at the scene and on witness interviews.
Generally, an officer with investigative training and experience may relate his opinion about the events that led to a vehicular collision, based on his observations, and may even testify about an ultimate issue if his conclusion exceeds the average juror's ken and is not a determination of fault. Fortner v. Town of Register , 289 Ga.App. 543, 545–546, 657 S.E.2d 620 (2008).
The trooper in this case did testify that in his opinion, based on his investigation, the trailer that Brown struck was protruding some distance into the road and the sun was in Brown's eyes. His conclusion about these factors was a proper matter for his testimony, as was the opinion of the investigating officer in Fortner that the decedent's failure to stop at a stop sign was “a contributing factor of the accident.” 289 Ga.App. at 545 (1), 657 S.E.2d 620. But the jury in this case did not require an expert's opinion regarding whether the tractor-trailer's location was “the” ultimate cause of the collision.
Although an experienced police officer can be qualified as an expert to give opinion testimony about the cause of a traffic accident, it remains settled law in Georgia that expert opinion testimony is unnecessary and improper if a jury would be able to ascertain the cause of the accident on its own and without any such testimony.
(Citation omitted.) Whitlock, 312 Ga.App. at 779–780 (1), 720 S.E.2d 194.
Brown argues that the officer's testimony in this case was admissible because it was based on his personal investigation in addition to witness statements, unlike the properly excluded evidence in Whitlock , 312 Ga.App. at 778–780 (1), 720 S.E.2d 194,1 and the erroneously admitted evidence in Purcell v. Kelley , 286 Ga.App. 117, 118, 648 S.E.2d 454 (2007).2 This argument misses the point, which is that in this case, whether the collision was caused by the placement of the parked tractor-trailer, by Brown continuing to drive when she could not see where she was going, or by a combination of these factors, was not an issue that a layperson needed expert opinion to decide. Thus, the trial court acted within its discretion in excluding the proffered testimony. In contrast, the officer's opinion about where the tractor-trailer was located before the collision and the degree to which the sun could have been in Brown's eyes was properly admitted by the trial court, because those conclusions were based on the officer's application of his expert knowledge to the physical evidence at the scene. See Kennebeck v. Glover , 294 Ga.App. 822, 823–825, 670 S.E.2d 459 (2008) (...
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