Estate of Hunt v. Board of Com'rs of Henry County, 89A04-8607-CV-231

• Decision Date: 22 August 1988
• Docket Number: No. 89A04-8607-CV-231,89A04-8607-CV-231
• Citation: 526 N.E.2d 1230
• Parties: ESTATE OF Duane HUNT, et al., Appellants, v. BOARD OF COMMISSIONERS OF HENRY COUNTY, et al., Appellees.
• Court: Indiana Appellate Court

Page 1230

526 N.E.2d 1230

ESTATE OF Duane HUNT, et al., Appellants, v. BOARD OF COMMISSIONERS OF HENRY COUNTY, et al., Appellees.

No. 89A04-8607-CV-231.

Court of Appeals of Indiana Fourth District.

Aug. 22, 1988.

Rehearing Denied Oct. 17, 1988.

Douglas Norris, Cambridge City, David W. Dennis, Dennis & Bertesch, Richmond, for appellants.

Robert A. Smith, Lewis Bowman St. Clair & Wagner, Indianapolis, for appellees.

MILLER, Judge.

The Estate of Duane Hunt filed this suit against the Henry County Board of Commissioners alleging the county's negligent maintenance of a road caused Hunt's death. The suit was brought on behalf of Twila Hunt, Duane's dependent sister. The jury returned a general verdict against the estate. The estate appeals, alleging the trial court committed a variety of errors in the admission of evidence and the instruction of the jury as to the law. We find no error and affirm.

ISSUES

The estate raises eight issues for our review. Several of these issues are restatements or variations of the same basic complaints. In order to facilitate our discussion of the issues, we consolidate them:

I. Did the court err in allowing the county's expert, John Weichel, to testify as to the car's minimum speed and to contributing causes of the accident?

II. Did the court err in allowing the investigating police officer, Daniel Ross, to testify as to the car's speed and to contributing causes of the accident?

III. Did the court erroneously instruct the jury on the issue of contributory negligence?

FACTS

On July 27, 1982, Duane Hunt drove to Glenwood, Indiana to take Jason, Ryan, and Christina Stewart to a little league baseball game in Cambridge City. After picking them up, he drove east on County Line Road in Henry County. The car crested a small hill and hit one or both of two large depressions in the road at the bottom of the hill. Duane attempted to maintain control of the vehicle, but was unable to do so. The car left the roadway, traveled in an arc through a fence and through a grassy field, and eventually came to rest against the bank of a small creek.

Duane suffered chest and shoulder injuries in the accident, but none of his injuries appeared to pose any threat to his life. He was taken for treatment to the emergency room of the Fayette County Hospital in Connersville. The emergency room staff took Duane's vital signs, which appeared normal, before treating him for his injuries. Several hours later, however, he suffered a severe heart attack. The emergency room staff stabilized his condition and transferred him to the coronary care unit. Several days later, Fayette County transferred Duane to St. Vincent's Hospital in Indianapolis. There, he suffered a second and fatal heart attack.

The evidence of causes contributing to the accident produced at trial showed the depressions in the road's surface were

quite large. They reached a maximum depth of eight to ten inches and the two holes together covered almost the entire width of the road. The evidence conflicted as to the speed of the car. The speed limit on County Line Road at the place of the accident was fifty-five miles per hour. One of the passengers testified the car traveled at 45 miles per hour as it approached the hill, but he was unable to fix the speed when the car hit the holes. The estate's accident reconstruction expert, Louis Daniel Metz, testified that he believed the car was traveling 55 miles per hour when it hit the holes, but he also conceded the car could have been traveling at a higher speed. State trooper, Daniel Ross, who investigated the accident, estimated the car's speed to be 55 miles per hour when Duane lost control. Finally, the county's expert, John Weichel, opined the car's minimum speed was at least 55 miles per hour, but due to uncertainty as to some variables, the speed could have been as high as 65 miles per hour. The two expert witnesses and the state trooper all agreed that the depressions and, at least in some sense, the speed of the car contributed to the accident.

DECISION

ISSUE I: Challenges to the testimony of the county's expert Weichel

A: Should Weichel's opinion, based in part on hearsay, have been excluded?

Weichel testified in answer to a hypothetical question that speed was a contributing factor to the accident. His answer was based upon a review of:

1. The unpublished depositions of police officers Ross and Sheets;

2. The unpublished depositions of two of the surviving passengers in Hunt's car;

3. The police report which was not in evidence;

4. Weichel's own visit to the scene of the accident;

5. Photographs in evidence of the wrecked car;

6. The unpublished deposition of the expert for the estate, Metz;

7. Weichel's own calculations.

The estate contends that the depositions of the police officers and the passengers and the police report, numbers 1, 2, and 3 above, are hearsay and Weichel's opinion which considered this hearsay is of no probative value and should have been excluded. We agree with the general rule which supports the exclusion of expert opinion when it does not appear that the opinion was based independently of hearsay matter. Davis v. Schneider (1979), 182 Ind.App. 275, 395 N.E.2d 283; Rosenbalm v. Winski (1975), 165 Ind.App. 378, 332 N.E.2d 249.

In addressing this issue, we observe that an expert may testify on the basis of first hand knowledge or facts in the record. He may also express his opinion upon assumed facts supported by the evidence and stated to him by way of a hypothetical question. Senco Products, Inc. v. Riley (1982), Ind.App., 434 N.E.2d 561, 133 A.L.R.4th 1173. The facts needed to form the opinion must be included in the hypothetical question asked of the expert witness. But, the question may omit trivial or non-material facts. City of Indianapolis v. Robinson (1981), Ind.App., 427 N.E.2d 902. An expert may rely upon hearsay testimony along with his personal observations to formulate his opinion provided the hearsay relied upon is of the type customarily relied upon by such experts. Clouse v. Fielder (1982), Ind.App., 431 N.E.2d 148.

The testimony of a police officer and a police report served as the basis of the expert opinion offered in City of Indianapolis v. Robinson, supra. However, it is not clear whether the expert relied on an unpublished deposition of a police officer or whether the police report was admitted into evidence. The present issue was not before the court and therefore these pertinent facts were not set out. Nevertheless, we note that this hearsay is of the type customarily and reasonably relied upon by expert accident reconstructionists. In any event, the significant measurements contained in the police report relied on by Weichel were introduced into evidence by Trooper Ross at trial.

However, the county failed to present evidence that the depositions of the two passengers in Hunt's car were typical of evidence customarily relied upon by accident reconstructionists. The estate would have us rely on the case of Rosenbalm v. Winski (1975), 165 Ind.App. 378, 332 N.E.2d 249. In Rosenbalm, a police officer was allowed to give his opinion that a fire truck entered an intersection unsafely against the light without its emergency flashing lights on. His opinion was primarily based upon the testimony of six eyewitnesses who gave estimates of the fire truck's speed. The court held that it was error, albeit harmless error, to allow the police officer to give his opinion because it did not "appear that the hearsay was a type regularly found reliable and customarily relied upon, nor does it appear that the evidence was founded independently of the hearsay." Id. 332 N.E.2d at 253 (emphasis ours).

Weichel's opinion of Hunt's speed was based primarily upon the application of a scientific model to the measurements taken by Trooper Ross at the scene. He computed Hunt's speed using the "cord and moment" model based on the measurements of skid or yaw ¹ marks and the distance the car traveled off the road to where it came to rest. It does not appear that Weichel relied on the two passenger's depositions much, if at all. As an expert, Weichel could draw upon all sources of information coming to his knowledge or through the results of his investigation in order to enable him to formulate an opinion concerning the speed of Hunt's car. The fact that he read unpublished depositions does not render his opinion hearsay. He is competent to judge the reliability of the statements in the depositions and use these statements together with his own observations and calculations to comprise a sufficient basis for a direct expression of his own professional opinion as to the speed of the car upon impact with the chuckholes. Trinity Universal Ins. Co. v. Town of Speedway (1965), 137 Ind.App. 510, 210 N.E.2d 95. An "otherwise validly drawn expert opinion should not be rendered inadmissible merely because somewhere along the way the expert was exposed to an item of hearsay which he may have 'considered' in that it appeared to corroborate or not dispute his conclusion." Rosenbalm, supra, 332 N.E.2d at 252, 253.

B: Should the court have excluded Weichel's estimate of Hunt's actual speed because it utilized undisclosed methods of computation and was based on speculative changes in assumptions?

Weichel estimated Hunt's minimum speed at 55 miles per hour upon impact with the chuckholes using conservative assumptions. He then relaxed these assumptions and opined Hunt's actual speed at between 55 and 65 miles per hour. The estate contends that Weichel did not explain the scientific model he used nor did he state the changes in his assumptions. The estate argues that Weichel was erroneously allowed to pull his estimate "out of the air" to serve the interests of the county.

We acknowledge that "[e]xpert opinion testimony should not be allowed to extend to the area of baseless conjecture concerning matters not susceptible of reasonably accurate conclusions, ..." Town of...