Carrizoza v. Zahn, 1
| Decision Date | 23 November 1973 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 21 Ariz.App. 94,515 P.2d 1192 |
| Parties | Esmundo G. CARRIZOZA, Appellant, v. Edward A. ZAHN and Carol S. Zahn, husband and wife, Appellees. 1835. |
| Court | Arizona Court of Appeals |
There is one primary issue to be determined in this automobile negligence appeal: Was there sufficient foundation evidence for the trial court to permit an accident reconstruction expert to give his opinion relative to the speed of the vehicles involved in the accident?
The plaintiff, Esmundo Carrizoza, appeals from an adverse jury verdict rendered against him in his civil action with the defendants Edward A. Zahn and Carol S. Zahn, his wife.
The accident occurred at an uncontrolled intersection. The defendant Zahn admitted he did not see the plaintiff Carrizoza and entered a plea of guilty to the charge of 'failure to yield the right of way' after he was cited by the investigating officer. A Phoenix Police officer who was not the investigating officer was allowed to testify as an accident reconstruction expert. The trial court, over objection, allowed him to testify as to the speed of plaintiff's vehicle at the time of impact. The plaintiff testified that he was traveling 10 to 15 miles per hour while it was the expert's opinion the plaintiff was going 30 miles an hour.
Several states will not allow an accident reconstruction expert to give opinions in this field for the reason such an opinion is hearsay and infringes upon the function of the jurors as the finders of fact. The appellate courts of Arizona do allow a properly qualified expert to interpret facts in evidence and give an opinion which the jury is not qualified to make or where such an opinion would be helpful to the jury. Goslin v. Bacome, 107 Ariz. 432, 489 P.2d 242 (1971); Patterson v. Chenowith, 89 Ariz. 183, 360 P.2d 202 (1961); Anglin v. Nichols, 80 Ariz. 346, 297 P.2d 932 (1956); City of Phoenix v. Schroeder, 1 Ariz.App. 510, 405 P.2d 301 (1965).
Although such testimony may be admissible, the Arizona courts have been very careful in requiring an expert who did not view the accident to have sufficient valid information as a foundation before he can give an opinion on speed. In Mutz v. Lucero, 90 Ariz. 38, 365 P.2d 49 (1961), the Arizona Supreme Court held that the use of skidmarks to show direction and course of travel will have no probative effect unless the skidmarks are properly shown to have been made by the vehicles involved in the accident in question. See also Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962). The expert may base an opinion on his personal observations, Gray v. Woods, 84 Ariz. 87, 324 P.2d 220 (1958), or upon testimony and exhibits properly admitted into evidence. Patterson v. Chenowith, supra; Mattingly v. Eisenberg, 79 Ariz. 135, 285 P.2d 174 (1955). He must, however, base his opinion only upon competent evidence. Gray v. Woods, supra; State v. Romo, 66 Ariz. 174, 185 P.2d 757 (1947); State v. Gevrez, 61 Ariz. 296, 148 P.2d 829 (1944); Middleton v. Green, 35 Ariz. 205, 276 P. 322 (1929). As pointed out in Udall, Arizona Law of Evidence, at footnote on page 277, '. . . the court should be cautious in admitting an expert's attempt to reconstruct the accident based solely on skid marks, physical damage and the like.'
The plaintiff asserts in this appeal that there was no proper foundation for the expert's opinion as to the speed of plaintiff's vehicle. We agree. First, the expert assumed that plaintiff's car went into a broadside skid immediately after impact and slid at least two-thirds of the distance to its final point of rest, or approximately 43 feet. There is nothing in the testimony or exhibits that shows there was such a skid nor is there any evidence of any skid or scuff marks. Second, the expert assumed that the wheels of the car were turned at impact, either by the plaintiff or otherwise, in the opposite direction of the alleged slide. There is no evidence in the record as to plaintiff's action at the time of impact other than that he was thrown down in the seat. The expert admitted that the wheel had to be turned in...
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