Gaw v. State By and Through Dept. of Transp.
| Citation | 798 P.2d 1130 |
| Decision Date | 13 September 1990 |
| Docket Number | No. 890139-CA,890139-CA |
| Parties | Fay GAW, Plaintiff and Appellant, v. STATE of Utah, By and Through its DEPARTMENT OF TRANSPORTATION, Carbon County, City of Helper, Jimmy Wray Lingle, Allstate Ins. Company, an Illinois Corp., Roadrunner Trucking, a New Mexico Corp., and John Does I Through X, Defendants and Appellees. |
| Court | Court of Appeals of Utah |
Robert J. Debry, Edward T. Wells (argued), Daniel F. Bertch, Gordon K. Jensen, Robert J. Debry & Associates, Salt Lake City, for plaintiff and appellant.
Joy L. Sanders (argued), Jody K. Burnett, Snow, Christensen & Martineau, Salt Lake City, for Dept. of Transp.
Robert R. Wallace (argued), Scott F. Squire, Hanson, Epperson & Smith, Salt Lake City, for Roadrunner Trucking.
Before DAVIDSON, 1 BULLOCK 2 and ORME, JJ.
On April 16, 1984, Fay Gaw was turning left from a side street onto Highway 6 in Helper, Utah. Gaw apparently drove across a merge lane and into the through lane of traffic when she was hit by a truck driven by Jimmy Wray Lingle and owned by Roadrunner Trucking. Gaw was paralyzed from the chest down as a result of the accident. She brought suit against Lingle claiming that he had negligently operated the truck and against Roadrunner as the employer of Lingle. She also brought suit against the State of Utah claiming that the intersection was negligently designed, constructed and maintained. 3
On January 30, 1986, Gaw's deposition was taken at the instance of Lingle. The court reporter transcribed the testimony and delivered a copy of the deposition to Gaw's attorney. On March 14, Gaw received a sheet from the reporter on which to make appropriate corrections to her deposition. In May, Gaw's attorney sought and obtained an extension of time to correct the deposition and file it with the court. Gaw made approximately fifty changes to her deposition, which were filed with the deposition in June 1986.
In July 1986, defendants moved to suppress the changes in Gaw's deposition, claiming that the corrections were not made in compliance with Utah Rule of Civil Procedure 30(e), that Gaw had given a false excuse for making substantial changes to the deposition, and that the changes would prejudice the defendants. In February 1988, the court granted defendants' motions and suppressed the changes to Gaw's deposition.
In March 1988, the state filed a motion for summary judgment. Gaw filed a motion in opposition along with her own affidavit and the affidavits of two engineers who stated their opinions that the intersection was faultily designed. The trial court granted the state's motion for summary judgment, finding that Gaw had failed to produce any evidence that the intersection was faultily designed or that such design had caused the accident.
In September 1988, a jury trial was held to determine the liability of Lingle and Roadrunner. On special verdict, the jury found Gaw 75% liable for the accident and Lingle 25% liable.
During the trial, Gaw attempted to admit testimony from a "human factors" expert to the effect that Gaw had behaved in a reasonable and prudent manner and that Lingle had not behaved reasonably under the circumstances. The trial court did not allow the expert to testify in conclusory legal terms about the reasonableness of the parties' actions. It did, however, allow the expert to testify extensively about the misleading nature of the intersection, the likelihood that Gaw was confused by the intersection markings, and the distinction between her subjective and objective confusion.
Defendants submitted three proposed jury instructions, each of which stated that the conduct described in the instructions "is negligence." Gaw objected to these instructions because they effectively incorporated a standard of per se negligence contrary to Utah law. 4 The court noted Gaw's objection but gave the instructions as tendered.
On appeal, Gaw raises three arguments. First, Gaw argues that the court improperly limited the testimony of her human factors expert. Second, Gaw challenges the jury instructions to which she objected below. Finally, Gaw argues that the court improperly granted summary judgment to the state, primarily due to the court's decision to suppress the changes Gaw sought to make to her deposition. We affirm in part, reverse in part, and remand for a new trial.
Gaw challenges the trial court's decision prohibiting the human factors expert from testifying that Gaw's actions before the accident constituted reasonable, prudent conduct. 5 In order to prevail on this issue, Gaw must demonstrate that the trial court abused its discretion in excluding the expert testimony. Ostler v. Albina Transfer Co., 781 P.2d 445, 447 (Utah Ct.App.1989). Moreover, she must demonstrate that "the excluded evidence would probably have had a substantial influence in bringing about a different verdict." Redevelopment Agency v. Tanner, 740 P.2d 1296, 1303-04 (Utah 1987).
The Utah Rules of Evidence provide that a witness who has been qualified as an expert may testify "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Utah R.Evid. 702. Moreover, that testimony may embrace "an ultimate issue to be decided by the trier of fact." Utah R.Evid. 704.
As a general rule, it is within the discretion of the trial court to determine whether a particular expert is qualified and whether particular testimony would be helpful and suitable in a particular case. Ostler, 781 P.2d at 447. However, the trial court does not properly exercise that discretion where its decision is based upon a misconception of law. In re Carmaleta B., 21 Cal.3d 482, 579 P.2d 514, 523, 146 Cal.Rptr. 623, 631-32, (1978) (en banc). See also Kirkham v. 4.60 Acres of Land, 100 Idaho 781, 605 P.2d 959, 962 (1980) (). Cf. Naranjo v. Naranjo, 751 P.2d 1144, 1146 (Utah Ct.App.1988) ().
In this case, the court based its decision to exclude the expert's testimony in large part upon its erroneous view that it was obligated to give the jury per se negligence instructions. The court stated with our emphasis:
[O]ne of the problems you have is this jury instruction that says: How does that conform with [expert testimony that certain behavior is reasonable] if there is a violation of the law? ... It's just inconsistent with what the jury has to determine. In other words, even though she may have been mis[led] and drove across, and the law says she won't drive across, I have to tell the jury if she does that, regardless, she is negligent. So that would make it inconsistent. I instruct them, and then [the expert testimony] would be inconsistent with my instructions. To me that creates a doubtful situation; doesn't help the jury at all[;] just confuses them.
Because the court based its decision to exclude the expert testimony on a misconception of the law, we hold that the decision was necessarily an abuse of discretion.
Although we conclude that the court erroneously excluded the testimony, that error is harmless because the inclusion of that testimony would not have resulted in a different verdict. It is true that the court prohibited the expert from specifically stating his opinion that Gaw's conduct was reasonable. However, the expert testified at length that the intersection was very confusing, that many drivers would have been confused by the intersection, and that Gaw was very likely confused by the intersection. The obvious conclusion from the expert's testimony was that Gaw acted reasonably under all the circumstances. Though the court should not have excluded those specific words, the message was clearly communicated in the expert's testimony. Consequently, we hold that even though the court abused its discretion in excluding the testimony, the abuse does not constitute reversible error.
The trial court, in three jury instructions, advised the jury that certain actions on the part of a driver constituted negligence. Gaw argues that these types of "per se" negligence instructions are inappropriate and constitute reversible error. We agree with Gaw's position, at least as to one of the court's instructions, and therefore reverse the trial verdict against her.
The parties disagree about whether the violation of a statute or ordinance, such as occurred when Gaw made her illegal turn onto Highway 6, constitutes "per se" or "prima facie" negligence in Utah. Their confusion is not surprising because Utah appellate courts have also occasionally confused these terms. 6 However, though the terminology has been confused, the concept has remained the same and was succinctly stated in Intermountain Farmers Ass'n v. Fitzgerald, 574 P.2d 1162 (Utah 1978).
[T]he violation of a statute does not necessarily constitute negligence per se and may be considered only as evidence of negligence.... [The violation] may be regarded as "prima facie evidence of negligence, but is subject to justification or excuse...."
Id. at 1164-65 (quoting Thompson v. Ford Motor Co., 16 Utah 2d 30, 395 P.2d 62, 64 (1964)) (emphasis added). "Prima facie" negligence is the correct standard and a trial court commits prejudicial error when it gives a jury instruction which provides that the violation of a statute is negligence without the possibility for justification or excuse. 7 Id. at 1164.
The trial court in this case did not contemplate that the standard in Utah is "prima facie." During the trial, at a conference in chambers, the court stated with our emphasis:
Because one of the problems you have is that we give this...
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