Maier v. Wilson

Decision Date28 December 2017
Docket NumberDA 16-0308
Parties Kerry S. MAIER and Martin H. Rausch, Plaintiffs and Appellants, v. Erin WILSON, Defendant and Appellee.
CourtMontana Supreme Court

For Appellant: Sarah M. Lockwood, Bryan C. Tipp, Tipp, Coburn, Schandelson, P.C., Missoula, Montana

For Appellee: G. Patrick HagEstad, Tim E. Dailey, Milodragovich, Dale & Steinbrenner, P.C., Missoula, Montana

Justice Michael E Wheat delivered the Opinion of the Court.

¶ 1 Kerry Maier (Maier) sued Erin Wilson (Wilson) after a vehicle-pedestrian collision in Missoula, Montana. Maier appeals from a judgment in the Fourth Judicial District Court, Missoula County, following a jury trial. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 We restate the issues on appeal as follows:

Issue One: Did the District Court err in denying Plaintiff's motion for summary judgment regarding negligence per se?
Issue Two: Did the District Court abuse its discretion in responding to a written question submitted by the jury during deliberations?
Issue Three: Did the District Court abuse its discretion by denying Plaintiff's counsel the opportunity to cross-examine Bridget Smith regarding her prior inconsistent statements?

¶ 3 This case arises from a vehicle-pedestrian collision on April 9, 2013, in Missoula, Montana. Wilson was driving east on Sixth Street around 8:00 a.m. As she approached the intersection of Sixth Avenue and Helen Avenue, Wilson was blinded by the sun's glare on her windshield. Wilson testified that she put down her visor to reduce the sun's glare. Further, Wilson testified that she slowed down once her vision was impeded. Lastly, Wilson testified that she had made a lane change prior to passing through the intersection of Sixth and Helen.

¶ 4 Maier had parked on Helen Avenue and was walking towards her job at Curry Health Center. Maier usually crossed Sixth Avenue at the unmarked crosswalk adjacent to Helen Avenue. Maier testified that she looked for oncoming traffic but only saw a car a fair distance away and believed she could cross safely. Maier testified that she walked more than halfway across Sixth Street before she struck by Wilson's vehicle. Maier's body was hurled a considerable distance into the bike lane. Maier suffered serious injuries from the collision, including ten fractures, an ACL tear, a concussion, and internal injuries to her bladder.

¶ 5 Officers responded to the scene. Officer Kaneff processed the scene and took measurements from where Maier's body landed to the unmarked crosswalk. Additionally, officers took statements from several eyewitnesses, including Bridget Smith (Smith). Smith was at the intersection of Sixth and Helen attempting to cross Sixth street at the time of the collision. Smith was the only eyewitness to testify at trial.

¶ 6 Maier filed suit against Wilson alleging negligence. Maier filed a motion for partial summary judgment arguing, based on an accident reconstructionist and the deposition of Wilson, she was entitled to summary judgment on her negligence per se claim because she was within the unmarked crosswalk. Wilson opposed the motion, arguing Maier failed to meet her burden of showing no dispute of fact existed. The District Court concluded a genuine dispute of material fact existed concerning whether Maier was in the unmarked crosswalk, which precluded summary judgment.

¶ 7 Shortly before trial, the District Court held several evidentiary hearings regarding the scope of the witnesses' testimony. On March 14, 2016, during a pretrial hearing, the District Court specifically ordered that the police report would not be admitted. On March 16, 2016, the District Court issued a pretrial order acknowledging "[p]laintiffs specifically objected to Officer Kaneff testifying about eyewitness statements included in the officer's report that constitute hearsay." Based on the objection and in accordance with M. R. Evid. 803(8)(i), the District Court determined the officers could not testify as regarding eyewitnesses' accounts. Therefore, the District Court ordered that "the officers' lay testimony will be limited to their observations and assessments made at the scene and/or other measurements that the officers conducted as part of their accident investigation." Further, to ensure inadmissible hearsay would not be introduced to the jury, the District Court ordered "[p]rior to taking the officers' trial testimony, the Court will conduct a brief in camera colloquy with counsel regarding the officers' proposed testimony." Lastly, the District Court ordered that "the parties will have an opportunity to cross-examine eyewitnesses who will testify at trial, and such eyewitnesses' testimony is strictly limited to their personal qualitative observations of what they actually saw or heard at or near the time of accident."

¶ 8 The case proceeded to trial on March 18, 2016. After Maier rested her case-in-chief, Wilson called Smith as her first witness. Smith was the only non-party eyewitness to the collision called to testify. On cross-examination, Maier's counsel sought to impeach Smith with prior inconsistent statements she made to officers.

¶ 9 The testimony and objection at issue went as follows:

Q [by Maier's counsel, Mr. Tipp]: Notwithstanding that you did give a statement to the police on—
THE COURT: You're done there. Next question. Next area.
MR. TIPP: Your Honor, can I—
THE COURT: You're done. You're done there.
MR. TIPP: Your Honor, can I be heard?
MR. TIPP: Your Honor, I have—

¶ 10 At this point the District Court excused the jury and the following discussion took place outside of the presence of the jury. The District Court explained to Maier's counsel that before referencing any prior statements by a nonparty to this jury, counsel should have asked for a break. Maier's counsel proceeded to make an oral offer of proof as to Smith's prior inconsistent statements and their admissibility under M. R. Evid. 613. Specifically, Maier's counsel wished to question Smith on her prior inconsistent statements relating to: the speed of Wilson's vehicle; when Wilson's vehicle made a lane change; and whether Wilson's vehicle passed before or after Smith proceeded through the intersection. Based on these inconsistencies, Maier's counsel also expressed concern about Wilson's expert who relied on Smith's statements as a basis for his opinion.

¶ 11 The District Court determined that Maier's counsel could not question Smith about any prior inconsistent statements. Maier's counsel then inquired about the scope of Smith's prior statements and what exactly he could ask regarding Smith's observations and recollection of Wilson's vehicle. The following discussion took place outside the presence of the jury:

MR. TIPP: I—I don't get to ask her what she observed regarding the white Santa Fe [Wilson's vehicle].
THE COURT: She's—you can ask her again what she saw one time. You can effectively redo the question that Mr. Dailey [Wilson's counsel] did.
MR. TIPP: I don't—I'm not allowed to cross-examine her, Your Honor?
THE COURT: You're—you're just playing games now.
MR. TIPP: No I'm not.
THE COURT: I've given you—I've given you direction to stay out of the prior statements. I've told you that you can ask what she saw of the white Santa Fe.

¶ 12 Maier's counsel sought further clarification from the District Court on what exactly he could ask Smith about her observations of the white Santa Fe, and the District Court stated: "I'll allow the question as: What did you observe as to the white Santa Fe." Once the jury returned, Maier's counsel obeyed the District Court's order and did not cross-examine Smith about her prior inconsistent statements. Maier's counsel simply asked Smith about what she observed as to the white Santa Fe.

¶ 13 On March 23, 2016, Maier filed a written offer of proof regarding the District Court's ruling on Smith's cross-examination. On March 23, 2016, the case was submitted to the jury for deliberations. During deliberations, the jury submitted the following question:

Regarding Missoula City Ordinance 10.44.040 Is the final sentence, "once the pedestrian has entered the roadway, the privilege of the right-of-way belongs to the pedestrian" ... contingent on the prior sentence re: entering at marked or unmarked crosswalk? Or does it stand alone?

Counsel for both parties appeared in front of the District Court to discuss the response. Plaintiff's counsel objected to the following response provided by the District Court:

In response to your question concerning Missoula City Ordinance § 10.44.040. The entire ordinance is to be read as applying only to pedestrians in marked or unmarked crosswalks.
For pedestrians crossing at points other than marked or within a marked crosswalk, Montana Code Annotated § 61-8-503 states:
(1) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
(3) Between adjacent intersections at which traffic control signals are in operation pedestrians shall not cross at any place except in a marked crosswalk.

¶ 14 On March 24, 2016, the jury returned a defense verdict finding Wilson not negligent in the collision.


¶ 15 We review a district court's grant of summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as the district court. Pilgeram v. Greenpoint Mortg. Funding, Inc. , 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Under M. R. Civ. P. 56(c), summary judgment will be granted if the moving party can show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Roe v. City of Missoula , 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200. "We view the evidence in the light most favorable to the party opposing summary judgment, and we...

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