Karlson v. Harris

• Decision Date: 01 July 2004
• Docket Number: No. 27587.,27587.
• Citation: 140 Idaho 561,97 P.3d 428
• Parties: Evan D. KARLSON and Debra Day Karlson, husband and wife, and Adam Day, a minor, Plaintiffs-Appellants, v. Jeffrey F. HARRIS; Charles and Peggy Mowers, husband and wife; and State of Idaho, Department of Transportation, Defendants-Respondents.
• Court: Idaho Supreme Court

97 P.3d 428

140 Idaho 561

Evan D. KARLSON and Debra Day Karlson, husband and wife, and Adam Day, a minor, Plaintiffs-Appellants, v. Jeffrey F. HARRIS; Charles and Peggy Mowers, husband and wife; and State of Idaho, Department of Transportation, Defendants-Respondents.

No. 27587.

Supreme Court of Idaho, Boise, May 2004 Term.

July 1, 2004.

Rehearing Denied September 3, 2004.

Lowell N. Hawkes, Chtd., Pocatello, for appellants. Lowell N. Hawkes argued.

Merrill & Merrill, Pocatello, for respondent Harris. David C. Nye argued.

Thomsen & Stephens Law Offices, Idaho Falls, for respondent Mowers. J. Michael Wheiler argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent State of Idaho. Mitchell W. Brown argued.

SCHROEDER, Justice.

This is a personal injury case based on negligence. Evan and Debra Karlson and Debra's son Adam Day (collectively "Karlsons") were injured in an automobile accident in which their vehicle struck a cow carcass near McCammon, Idaho. The Karlsons filed an action against the owners of the cow, the owners of the property from which the cow escaped and the State of Idaho to recover physical and emotional damages sustained in the accident. The jury returned a verdict in favor of the defendants, and the district court denied the Karlsons' post-trial motions. The Karlsons appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the night of October 10, 1997, Gary and Barbara Flaherty were driving south on I-15 in a semi tractor/trailer owned by L.W. Miller Transportation. As the Flahertys drove beneath the U.S. Highway 30 overpass of the McCammon Interchange, they collided with several head of cattle that had escaped a nearby pasture and migrated onto the interstate. The Karlsons were also traveling south on I-15 in a vehicle driven by Mr. Karlson. The Karlsons' vehicle collided with a cow carcass that had been struck and killed by the Flaherty's vehicle.

Jeff Harris (Harris) owned the cattle involved in the accident. Harris pastured the cattle on property owned by Charles and Peggy Mowers (Mowers). Following the accident, it was discovered that the gate to the pasture area had been broken. Harris believed that the cattle had been "spooked" or frightened into breaking the gate and fleeing the pasture. The morning after the accident, the Mowers allegedly discovered large unidentified paw prints in the snow mixed with cattle tracks. Mrs. Mowers took a picture of the paw prints.

Once they had escaped from the Mowers' property, some of the cattle gained access to I-15 by traveling down the southbound on-ramp at the McCammon Interchange. The Idaho Department of Transportation (IDOT) maintains the interchange. The on and off-ramps of this interchange had historically been equipped with cattle guards. However, IDOT removed the guards between 1987 and 1993 due to maintenance costs and a decreased need for cattle guards at this location.

The Karlsons filed a negligence action against Harris, the Mowers and the IDOT for physical and emotional injuries sustained during the accident. Following an eight-day trial, the jury found no negligence on the part of any defendant. The district court subsequently denied the Karlsons' consolidated motion for judgment notwithstanding the verdict and for a new trial.

The Karlsons appeal, raising numerous issues encompassed within the questions of: (1) whether the district court abused its discretion in allowing the testimony of the Mowers' expert witnesses; (2) whether the district court erred in denying the Karlsons' motions for J.N.O.V. and for a new trial; and (3) whether the district court erred in failing to take judicial notice of the State's ownership of land adjacent to the McCammon Interchange. Each of the respondents seeks attorney fees.

II.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING EXPERT TESTIMONY

Standard of Review

Trial courts have "broad discretion in the admission of evidence at trial, and [their] decision to admit such evidence will be reversed only when there has been a clear abuse of that discretion." Empire Lumber Co. v. Thermal-Dynamic Towers, Inc., 132 Idaho 295, 304, 971 P.2d 1119, 1128 (1998). "The same standard applies to the admission of expert testimony." Basic American, Inc. v. Shatila, 133 Idaho 726, 743, 992 P.2d 175, 192 (1999) (citation omitted). In the case of an incorrect ruling regarding evidence, a new trial is merited only if the error affects a substantial right of one of the parties. I.R.C.P. 61; I.R.E. 103; Hake v. DeLane, 117 Idaho 1058, 1065, 793 P.2d 1230, 1237 (1990).

A. The district court did not abuse its discretion in allowing the expert testimony of the Mowers' expert witnesses.

The Karlsons claim that the district court committed prejudicial error in allowing the jury to hear speculative "predator theory" testimony from the Mowers' two expert witnesses, Warren Moore, a retired federal trapper, and Ed Duren, an expert in animal science. According to the Karlsons, these experts had no basis to testify regarding the possibility that an advancing predator freightened the cattle on the night they escaped the Mowers' pasture. The Karlsons have the burden of showing that the district court committed error. See Western Cmty. Ins. Co. v. Kickers, Inc., 137 Idaho 305, 306, 48 P.3d 634, 635 (2002)

.

The Karlsons claim that the district court failed to rule upon their motion in limine"[t]o exclude testimony of Ed Duren regarding ... conclusions relative to predators." In fact the district court deferred ruling on the motion to determine admissibility when the foundation for the testimony was either established or not. A trial court is entitled to wait and hear the actual foundation laid at trial prior to determining whether to admit or exclude an expert opinion. Lanham v. Idaho Power Co., 130 Idaho 486, 492, 943 P.2d 912, 918 (1997). In such cases, "counsel must continue to object as the evidence is presented." State v. Hester, 114 Idaho 688, 699, 760 P.2d 27, 38 (1988). The district court did not abuse its discretion. The district court was entitled to defer its ruling regarding the admissibility of Mr. Duren's testimony "until the case unfolds and there is a better record upon which to make [its] decision." See Hester, at 700, 760 P.2d at 39.

The Karlsons also assert that expert opinion testimony regarding the existence and/or origin of unidentified paw prints based on a photograph taken on the Mowers' property following the accident was inadmissible speculation. The Mowers testified that they discovered "large paw prints" that were "different than cow tracks" on their property following the cattle's escape. Mrs. Mowers took a photograph of the alleged prints which was admitted into evidence. According to the Karlsons, any expert opinions drawn from this photograph concerning the presence of predators on the Mowers' property on the night of the cattle's escape would be pure speculation because the photograph was not adequate to determine the existence, size, direction or origin of any type of paw print.

The word "speculation" in relationship to testimony has been defined as "the art of theorizing about a matter as to which evidence is not sufficient for certain knowledge." BLACK'S LAW DICTIONARY 1255 (5th ed.1979). "An expert opinion that is speculative or unsubstantiated by facts in the record is inadmissible because it would not assist the trier of fact to understand the evidence or determine a fact that is at issue." Id. (citing Bromley v. Garey, 132 Idaho 807, 979 P.2d 1165 (1999)). Expert opinion that merely suggests possibilities would only invite conjecture and may be properly excluded. Elce v. State, 110 Idaho 361, 716 P.2d 505 (1986).

Moore was the only expert witness to testify on behalf of the Mowers regarding Mrs. Mowers' photograph. During his testimony, counsel for the Karlsons made only two objections, which were sustained by the district court. As a result, Moore was prevented from offering his expert opinion regarding the origin of the paw prints allegedly depicted in Mrs. Mowers' photo. The Karlsons made no further objection and did not move to strike the testimony. The Karlsons were granted the relief they sought based on the objections they raised at trial. To the extent that the Karlsons are attempting to raise additional challenges to Moore's testimony on appeal, those challenges are waived. See Hanks v. Sawtelle Rentals, Inc., 133 Idaho 199, 204, 984 P.2d 122, 127 (1999)

.

The Karlsons assert that the district court erred in allowing Duren to offer his expert opinion based upon a hypothetical question asked by the Mowers' counsel. Following the testimony of Moore, the district court sought assurances from the Mowers' counsel that Duren would not base any of his testimony upon the testimony of Moore because "there's nothing here that I think is helpful to making any opinions." Despite the district court's stated position regarding the use of Moore's testimony, the Karlsons' claim that Duren was allowed to offer his expert opinion based upon a hypothetical set of facts, which contained Moore's excluded testimony regarding the type of predator tracks allegedly photographed on the Mowers' property following the accident.

A hypothetical question is "a form of question in which facts that an attorney claims or assumes to have been proved are stated as a hypothesis and on which an expert is then asked to state an opinion." 31A Am.Jur.2d Expert and Opinion Evidence § 77 (2003). During direct examination, Duren was asked by the Mowers' defense counsel to assume the following facts:

Assume that the gate — that there's some, that there's some cattle pastured behind the Mowers' place, okay, on October 11, 1997. The facts I want you to assume are: 1. The gate and fence were of the type and quality of those in the May and July photographs that we've been talking about. Okay?

I want you to assume that the gate was stretched tight, the gate that's been taken out and removed,

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