City of Indianapolis v. Robinson

• Decision Date: 09 November 1981
• Docket Number: No. 2-680A190,2-680A190
• Parties: CITY OF INDIANAPOLIS, Appellant (Defendant Below), v. Edward ROBINSON, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 902

427 N.E.2d 902

CITY OF INDIANAPOLIS, Appellant (Defendant Below), v. Edward ROBINSON, Appellee (Plaintiff Below).

No. 2-680A190.

Court of Appeals of Indiana, Fourth District.

Nov. 9, 1981.

John G. Forbes, Asst. Corp. Counsel, City-County Legal Div., Indianapolis, for appellant.

John F. Townsend, Jr., Townsend, Hovde, Townsend & Montross, Indianapolis, for appellee.

MILLER, Presiding Judge.

The City of Indianapolis (City) appeals a judgment awarding Edward Robinson damages for personal injuries suffered in an automobile accident. Robinson had charged the City with negligence in the maintenance of a city street. During the jury trial, the City attempted to establish Robinson was contributorily negligent in traveling in excess of the speed limit at the time of the accident. The trial court, however, excluded expert testimony on this matter and the City argues such exclusion was contrary to law. Since we agree the trial court committed reversible error in refusing to allow the City's expert witness to answer hypothetical questions regarding the speed of the Robinson vehicle, we reverse and remand for a new trial.

FACTS

In the early morning hours of August 13, 1967 ¹ Robinson was driving his 1958 Jaguar Robinson testified he was traveling 25 to 30 miles per hour, just under the 30 miles per hour speed limit, at the time of the accident. During its case in chief, the City called John M. Ulrich, a registered professional engineer, as an expert witness regarding the speed of Robinson's vehicle. After establishing Ulrich's qualifications, the City propounded at least two hypothetical questions designed to elicit Ulrich's opinion on Robinson's speed at the time of the accident. The hypotheticals allegedly incorporated measurements revealed by the testimony of a police officer who investigated the scene of the accident on the morning in question. Robinson's objections to the hypotheticals were sustained by the trial court. The City made offers to prove both with respect to Ulrich's qualifications and his opinion that Robinson was in fact traveling at the rate of 60 miles per hour at the time he struck the guard rail and plunged into the river bank. The trial court again sustained Robinson's objections. The jury ultimately entered a verdict against the City and awarded Robinson $60,000 in damages.

west on Raymond Street, a public highway in the City of Indianapolis. Raymond Street ended abruptly at the edge of the Eagle Creek gorge due to the removal of a bridge during a construction project for an expressway. In place of the bridge which previously spanned the gorge, the City erected a guard rail at the end of Raymond Street. Nevertheless, on the night in question, Robinson's vehicle plunged from the edge of Raymond Street across the gorge and into the base of the opposite bank. As a result Robinson suffered various internal and external injuries including five broken ribs, a collapsed lung, and extensive damage to his right knee. In addition to various medical expenses and loss of earnings during his recovery, Robinson sustained a 20 to 25% permanent impairment "of the whole."

ISSUES

The City raises the following issues for review:

1) Whether the trial court committed reversible error in not permitting Ulrich to testify in his capacity as an expert witness regarding the speed of Robinson's vehicle at the time of the accident?

2) Whether the jury's damage award was excessive?

DECISION

The City contends the trial court committed reversible error in excluding the testimony of its expert witness, John M. Ulrich. In determining the propriety of admitting or excluding expert testimony in response to hypothetical questions, we are confronted with several concerns, including the qualifications of the witness and the sufficiency of the hypotheticals. In support of the exclusion Robinson argues the existence of deficiencies in both areas. He additionally argues the trial court had absolute discretion to exclude any expert testimony on the speed of the Robinson vehicle as an invasion of the jury's province, even assuming both Ulrich's qualifications as an expert and the sufficiency of the hypotheticals. We will address each contention in turn.

Qualifications of Expert Witness

The City emphasizes Ulrich is a registered professional engineer and a professor of engineering who is experienced in computing the speed of airborne objects. On the other hand, in support of the exclusion of Ulrich's testimony, Robinson first contends Ulrich did not possess the necessary qualifications to render an expert opinion.

We recognize that, generally, the question of an expert's qualifications is for the trial judge's broad discretion and its decision in this regard is reviewable only for an abuse. Davis v. Schneider, (1979) Ind.App., 395 N.E.2d 283 (where this Court termed an argument "specious" which alleged a licensed medical doctor was not qualified to render an expert opinion on the aggravation of a patient's injuries). To qualify a witness as an expert two requirements must be met. First, the subject-matter of the expert's opinion must be so distinctly related to some science, profession, business or occupation as to be beyond the knowledge of the average layperson. Davis v. Schneider, supra; M. Seidman, The Law of Evidence in Indiana at 21 (1977); VII J. Wigmore, Evidence § 1923 (1940). Secondly, the witness must have sufficient skill, knowledge or experience in the field to make it appear that the witness's opinion or inference will probably aid the trier of fact in the search for truth. Davis v. Schneider, supra ; Seidman, supra ; Wigmore, supra.

Here, Robinson contends the court's ruling could be sustained on the basis that Ulrich's qualifications to testify on this issue were in several respects insufficient. ² First he asserts Ulrich's qualifications do not include any particular experience in the reconstruction of automobile accidents. According to the testimony, however, Ulrich obtained a bachelor's degree in mechanical engineering in 1957 and a master's degree in engineering in 1965. He is a registered professional engineer, and a member of the Society of Automotive Engineers and the Indianapolis Scientific and Engineers Foundation. Ulrich is an Associate Professor of Mechanical Engineering and Technology at Indiana University, Purdue University at Indianapolis. Specifically, Ulrich teaches practical courses in the School of Engineering and Technology, including courses on dynamics dealing directly with the computation of velocities, accelerations and distances traveled by airborne objects. Ulrich also teaches a similar course preparing candidates for certification as registered professional engineers in Indiana. According to his testimony, on many occasions Ulrich has computed the speed of various objects based only on the distances traveled and their relative locations.

In his brief Robinson points out that Ulrich had apparently never testified in court as an "automobile accident reconstruction expert." We note the City at some point submitted an offer of proof on Ulrich's qualifications although it does not appear the trial court restricted Ulrich's testimony based on his qualifications. Ulrich's resume, submitted as part of the offer of proof of his qualifications, indicates Ulrich has advised many law firms on similar matters on many occasions and has in fact testified as an expert witness, although the resume does not indicate the specific subject-matter of such testimony. The offer to prove, however, indicated Ulrich has testified on such matters on more than ten occasions. In any event, we do not believe it is significant if Ulrich had not testified as an "automobile accident reconstruction expert" in a judicial proceeding before the current case. Should we now accept such an objection as sufficient to exclude an expert's testimony, we would in fact never be able to qualify future witnesses as experts. Niehaus v. State, (1977) 265 Ind. 655, 359 N.E.2d 513, cert. denied 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188.

We recently held an expert witness with arguably less expertise but certainly less formal training than that of Ulrich in this particular area was qualified to testify on the cause of an accident. In State v. Bouras, (1981) Ind.App., 423 N.E.2d 741, this Court recognized the qualifications of an Indiana State Trooper to render an expert opinion on the cause of an automobile accident. This state trooper had been trained by the State at two law enforcement academies and in various seminars with unspecified curriculum. He also had two years investigative experience involving the determination of the direction and speed of vehicles in traffic accidents. See also Hergenrother v. State, (1981) Ind.App., 425 N.E.2d 225; Annot., 29 A.L.R.3d 248 (1970).

On the other hand, Robinson calls our attention to several opinions where an expert witness's testimony in accident reconstruction was held properly excluded. For example in McClure v. Austin, (1972) 152 Ind.App. 398, 283 N.E.2d 783, this Court held it was not an abuse of discretion to exclude the expert opinion of a police officer who had attended "recruit training" at Indiana University and who had "on the job training" at Purdue University in determining the speed of vehicles. The officer was retired at the time of trial and his "on the job training" occurred 30 years before the accident involved in that case. Although the police officer in McClure had investigated some 3,000 automobile accidents, the evidence revealed little indication of any particular expertise in determining the speed of vehicles in automobile accidents. This Court therefore held it was not an abuse of discretion to exclude the officer's testimony since reasonable persons might differ as to whether or not the witness was qualified to testify as an expert accident reconstructionist. Robinson also relies on Shelby National Bank v. Miller, (1970) 147 Ind.App. 203, 259...