Litts v. Wayne Paving Co., Inc., 2

• Decision Date: 07 May 1999
• Docket Number: No. 2,2
• Parties: 1999 N.Y. Slip Op. 4117 John E. LITTS, Plaintiff-Appellant-Respondent, v. WAYNE PAVING COMPANY, INC., Defendant-Respondent-Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 840

689 N.Y.S.2d 840

1999 N.Y. Slip Op. 4117

John E. LITTS, Plaintiff-Appellant-Respondent, v. WAYNE PAVING COMPANY, INC., Defendant-Respondent-Appellant. (Appeal No. 2.)

Supreme Court, Appellate Division, Fourth Department, New York.

May 7, 1999.

Robert Lahm, Syracuse, for plaintiff-appellant-respondent.

Bartle Gorman, Utica, for defendant-respondent-appellant.

PRESENT: GREEN, J.P., LAWTON, PIGOTT, JR., SCUDDER and BALIO, JJ.

MEMORANDUM:

Supreme Court abused its discretion in limiting the testimony of plaintiff's expert witness, a traffic and transportation civil engineer and accident reconstructionist. Plaintiff established that the witness possessed the requisite skill, training, education, knowledge and experience to reconstruct the accident and provide technical evidence to the jury to clarify the conflicting evidence concerning the speed of the motorcycle and the operation of the motorcycle and the steam roller. Because plaintiff established that the technical analysis of plaintiff's expert was beyond the ken of the typical juror, the court should have admitted the expert's testimony (see, Van Scooter v. 450 Trabold Rd., 206 A.D.2d 865, 866, 616 N.Y.S.2d 129; see also, Adamy v. Ziriakus, 231 A.D.2d 80, 88-89, 659 N.Y.S.2d 623, affd. 92 N.Y.2d 396, 681 N.Y.S.2d 463, 704 N.E.2d 216). The error may not be deemed harmless. Because the jury was prevented from hearing expert testimony concerning the contested question of the speed of the motorcycle and its operation, plaintiff's rights were substantially impaired (see, LaPenta v. Loca-Bik Ltee Transp., 238 A.D.2d 913, 914, 661 N.Y.S.2d 132; Rodriguez v. New York City Hous. Auth., 209 A.D.2d 260, 618 N.Y.S.2d 352). Consequently, a new trial is required.

The court did not abuse its discretion, however, in refusing to permit plaintiff to introduce into evidence two exhibits concerning the topography of the road that were drawn to differing scales. The court properly determined that those exhibits may have been misleading to the jury. Additionally, the court properly refused to permit plaintiff's expert to render an opinion whether defendant violated provisions of the Vehicle and Traffic Law and applicable regulations (see, LaPenta v. Loca-Bik Ltee Transp., supra, at 914, 661 N.Y.S.2d 132). Finally, we reject the contention of defendant on its cross appeal that the record establishes as a matter of law that it breached no duty to plaintiff.

In light of our determination granting a new trial,...