Goren v. U.S. Fire Ins. Co.

• Decision Date: 01 September 1996
• Docket Number: No. 791,791
• Citation: Goren v. U.S. Fire Ins. Co., 688 A.2d 941, 113 Md.App. 674 (Md. App. 1996)
• Parties: Robert GOREN, Individually, etc. v. UNITED STATES FIRE INSURANCE COMPANY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 674

113 Md.App. 674

688 A.2d 941

Robert GOREN, Individually, etc. v.UNITED STATES FIRE INSURANCE COMPANY, et al.

No. 791, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Feb. 6, 1997.

Leonard A. Orman, Baltimore, for appellants.

Donna M. Larkin(Bendos, Drechsler, Larkin & Waters, P.C., on the brief), Baltimore, for appellee, Fire Ins. Co.

Thomas F. McDonough, Towson, for appellee, Genstar.

C. MacNair Speed, on the brief, Baltimore, for appellee, Elaine Moss.

J. Joseph Curran, Jr., Attorney General, and Omar V. Melehy, Assistant Attorney General, on the brief, Baltimore, for appellee, State of Maryland.

Argued before FISCHER, HARRELL and HOLLANDER, JJ.

HOLLANDER, Judge.

Barbara Goren was killed on June 8, 1992, after the car she was driving crossed from the left lane of northbound Interstate 83 onto the southbound lanes, and was struck by an oncoming car.¹Her husband, Robert Goren, appellant, brought suit in the Circuit Court for Baltimore City, individually and as personal representative of Ms. Goren's estate, claiming that Elaine Moss, appellee, caused the accident by negligently operating her motor vehicle, which encroached into the decedent's lane and forced Ms. Goren off the highway.Appellant also sued United States Fire Insurance Company("United"), appellee, under the Gorens' uninsured motorist coverage, asserting, alternatively, that a phantom driver caused the accident.Additionally, appellant sued Genstar Stone Products Company("Genstar"), appellee, claiming its negligent grading of the shoulder of the interstate caused Ms. Goren to lose control of her car when she swerved to avoid the other vehicle.Genstar filed a third party complaint against the State Highway Administration(the "SHA"), appellee, claiming it had constructed the roadway according to SHA's specifications.²After a jury found all defendants not liable, and Ms. Goren contributorily negligent, appellant brought this appeal, positing three questions for our review, which we have re-ordered:

I.Did the court err by allowing a non-expert witness to render opinions regarding the causes of the traffic accident which he did not witness and to be cross-examined beyond the scope of his direct examination?

II.Did the trial court err in allowing all four appellees, whose interests were found to be adverse, to then combine together and exercise their peremptory challenges as a group concerted effort rather than separately?

III.Did the trial court err in permitting an accident reconstructionist to testify regarding opinions outside his scope of expertise?

We answer the first question in the affirmative; the trial court erred in permitting appellees to elicit "expert opinions" from a lay witness.Thus, we shall reverse and remand for a new trial.For the guidance of the trial court on remand, we shall consider appellant's second issue.Although the court properly found that the appellees had adverse interests and were thus entitled to additional jury strikes, we conclude that the court erred in permitting defense counsel to confer in the exercise of their peremptory challenges.We decline to address the third question.

Factual Summary³

On the morning of June 8, 1992, Barbara Goren was driving her car in Baltimore County, northbound on Interstate 83, when she was fatally injured in a car accident.Martin Droney, a telephone company employee, was driving in the same lane as Ms. Goren, approximately three cars behind her.Earl Harmon, a truck driver, was behind Droney.Both men testified at trial about the events that they witnessed.

According to Harmon and Droney, a car that was travelling in the lane to the right of Ms. Goren's lane, and just slightly ahead of her car, gradually began to move into Ms. Goren's lane.⁴Although the other car did not completely enter Ms. Goren's lane, the driver's-side wheels and some portion of that vehicle crossed into Ms. Goren's lane.In response, Ms. Goren moved her car to the left (westerly), and the two left wheels of her car went off the roadway.Droney further testified that there was a "straight drop off" between the paved road and the median, which he estimated measured four inches.According to both witnesses, Ms. Goren's car crossed the median of the highway, making between two and four 360 degree revolutions before coming to rest in a southbound lane of the highway.Ms. Goren was killed after her car was struck by an oncoming vehicle driven by Gene Campbell.

Through the testimony of Charles Pembleton, an accident reconstruction expert, appellant sought to establish, inter alia, that the encroachment of the other vehicle contributed to the cause of the accident, and that the discrepancy between the roadway and the median caused Ms. Goren to lose control of her car.Appellant also called State Trooper Charles Robbins, the officer who investigated the accident, to testify to the location of various items and to describe the scene of the crash.

In the defense case, Ms. Moss denied that she moved her vehicle into the lane occupied by Ms. Goren's car.She said that she heard a loud noise, and then saw Ms. Goren's car leave the paved highway, cross the median strip, and come to rest in an oncoming lane.The defense also called an accident reconstruction expert, Maryland State TrooperSergeant Albert Leibnow, to refute the existence of a drop-off significant enough to cause the accident, and to establish that Ms. Goren was negligent.

Additional facts will be included in our discussion of the issues.

I.

Appellant argues that the trial court erred in permitting appellees to cross-examine Trooper Robbins, called by appellant as a fact witness, as if he were an expert witness.He asserts that the appellees improperly elicited opinions as to several critical aspects of the accident.Appellees counter that a trial judge has substantial discretion to permit a lay witness to testify to opinions that are helpful to the jury and rationally based on the witness's observations.They also assert that the trial court did not abuse its discretion in this regard.

Trooper Robbins testified that he responded to the scene of the accident and investigated the crash, both on the morning of the accident and for several days afterward.He outlined the scene, including the location of the vehicles, the condition of the two cars involved in the accident, and the tire marks on the southbound lanes and in the median.The Trooper also described a construction barrel that was overturned on the northbound side of the highway, and explained that he found, near the barrel, the rear view mirror belonging to Ms. Goren's car.Robbins further said that he took photographs and measurements of the scene and interviewed various witnesses, including Droney, Harmon, Campbell, Andrea McGill, the driver behind Campbell, and Moss.He also stated that he measured the drop-off at six or seven spots along the highway, which varied from 1/2 inch to 1 1/2 inches.

It is undisputed that Trooper Robbins was not an accident reconstruction expert.⁵Indeed, he conceded that he had no special training in that field.Moreover, no party ever sought to offer him as an expert witness, and the court thus never received Robbins as an expert.⁶Nevertheless, on cross-examination, over appellant's objection, Genstar introduced into evidence a diagram of the accident scene, drawn by Robbins before trial, that purported to show the location of various objects as well as his opinion of the travel path of Ms. Goren's car.The following colloquy is relevant.

Counsel for appellant: I am objecting to his diagram because it is not what he found at the scene.It would be based on hear--it is what he heard as having happened.So it would be based on hearsay and based on a number of other things....

* * * * *

In addition, it is an opinion and his testimony is based on opinion and I think that goes beyond the factual questions that I asked him.I was very, very careful in asking questions about what he found at the scene and his interpretation.

* * * * * Counsel for Genstar: Well ... I am not saying this [diagram] is predicated upon hearsay.There is a photograph showing a barrel that he will identify as being down here in relation to obviously where everybody knows the car ended up.There are other photographs, Your Honor, showing tread marks, track marks across the median which would indicate the direction this was going and the fact there was no 360.All of those are physical facts that he found at the time of his you know--

The court: How does he know whether there was a 360 or not?

Counsel for Genstar: Because you can tell from the tracks in the median, Your Honor.

The court: And what difference does it make in this case whether there was a 360 or not?

Counsel for Genstar: Because there are two witnesses who said there was a 360 and their credibility is being challenged right now.

* * * * *

The court: I am going to overrule the objection.

* * * * *

Counsel for appellant: I am going to object and just trying to save my appellate rights.I am going to except to this coming in because, number one, it goes beyond the scope of his testimony.Number two, it goes beyond--and he was just called as a fact witness, as to what he found at the scene.

Number two, number two, it calls into--it permits him to testify as an expert in interpreting what he found and what information he was given.He has testified at deposition that he is not an accident reconstructionist.He has received no training in accident reconstruction.He is not a civil engineer and he has also received no training in the drawing of diagrams.

Now, I think that on these matters that it goes beyond the scope the fact that he is not an expert, the fact that he is not an accident reconstructionist, the fact that he is basing his testimony partially on hearsay creates, I believe, reversible error to permit in this diagram and it is the last thing I want to see happen in ...