Martin v. Roberts

• Decision Date: 10 August 1983
• Docket Number: No. 2-1281A418,2-1281A418
• Parties: Arlo D. MARTIN, Appellant (Defendant Below), v. Mary ROBERTS, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 182

452 N.E.2d 182

Arlo D. MARTIN, Appellant (Defendant Below), v. Mary ROBERTS, Appellee (Plaintiff Below).

No. 2-1281A418.

Court of Appeals of Indiana,

Second District.

Aug. 10, 1983.

Herbert A. Spitzer, Jr., Phillip E. Stephenson, Marion, for appellant.

Richard E. Sisson, Marion, for appellee.

SHIELDS, Judge.

Arlo D. Martin (Martin) appeals the entry of judgment against him in favor of Mary Roberts (Roberts) upon her claim for personal injuries she sustained while riding in a dune buggy driven by Martin . Because of our resolution of this case, we consider only the following issue:

Was the opinion testimony of state trooper Ronald Brown regarding the speed of the dune buggy at the time of the accident properly admitted?

We reverse.

On June 28, 1975, Roberts and three other persons were passengers in Martin's dune buggy. The dune buggy consisted of a home-built fiber glass "kit" body mounted on a Volkswagen Bug chassis. While driving down a blacktop country road, Martin's right tires dropped off the side of the pavement. He over-corrected and crossed the road diagonally, veering to the left. The left rear wheel of the dune buggy snagged on a telephone pole guy wire. The dune buggy stopped suddenly, catapulting the passengers from the vehicle. The abrupt stop also caused the fiber glass body to detach from the chassis.

Roberts sustained severe injuries in the wreck. She filed suit against Martin alleging he had engaged in wanton and willful misconduct while driving.

At trial evidence showed Martin's blood-alcohol content measured .12% on a breathalyzer machine. Nevertheless, his passengers, including Roberts, testified Martin's driving was neither impaired nor fast. Martin's wife estimated his speed at the State Trooper Ronald Brown (Brown) arrived at the scene following the accident. He was allowed to testify, over objection, that in his opinion the speed of the dune buggy was 65 miles per hour at the time of the accident. His was the only testimony placing Martin's speed above the legal limit of 55 miles per hour at the accident scene.

time of the accident at around 35 miles per hour.

The jury found for Roberts and awarded her $175,000 in damages. The trial court entered judgment in that amount. Martin's motion to correct errors was denied and this appeal followed.

DECISION

Our supreme court has observed care must be taken in allowing the admission of expert opinion evidence, particularly if it is of a technical nature:

"[A]s the subject of inquiry becomes more technical, involved, or scientific, the trial court, within whose reasonable discretion is the determination of the qualifications of a witness, should exercise greater care in ascertaining that an offered witness is in a position to throw light on the question."

New York Life Insurance Co. v. Kuhlenschmidt, (1941) 218 Ind. 404, 33 N.E.2d 340, 348-49.

To qualify a witness as an expert, two requirements must be met:

"1) the subject of the inference ... [is] so distinctly related to some science, profession, business or occupation as to be beyond the ken of laymen..... [Second, there must be a showing] the witness ... [has] sufficient skill, knowledge or experience in that field as to make it appear that his opinion or inference will probably aid the trier in his search for the truth."

Davis v. Schneider, (1979) Ind.App., 395 N.E.2d 283, 290. Furthermore, a proper factual foundation must be laid. "Such foundation includes ... the introduction of sufficient facts upon which an expert can base an opinion." Davis, 395 N.E.2d at 290. Thus, besides the showing of the "need" for an expert opinion, the foundation for the admission of expert opinion evidence includes:

1) evidence of the witness' knowledge of and/or skill or experience with the scientific, business or occupational formula, theorem, rule, standard, calculation, etc. that provides the sought after expert opinion and

2) evidence of sufficient known quantities in the particular cause to which the scientific, business or occupational formula, theorem, rule, standard, calculation can be applied.

An example of this process is found in Shelby National Bank v. Miller, (1970) 147 Ind.App. 203, 259 N.E.2d 450. In Miller in an offer to prove the proffered expert was first asked to describe the scientific methods for determining the speed of a vehicle. He then explained the method of making the calculation. This information provides the trial judge with the information necessary for the judge to exercise his discretion in ruling upon the admissibility of the proffered evidence.

Thus, in Posey County v. Chamness, (1982) Ind.App., 438 N.E.2d 1041, this court, in affirming the trial court's exercise of its discretion in refusing to permit expert opinion testimony, stated:

"The mere fact that a witness is a police officer does not qualify him to testify as an expert upon the speeds of motor vehicles. McCraney, supra. In McClure v. Austin, (1972) 152 Ind.App. 398, 283 N.E.2d 783, the court held that the refusal to permit a retired state trooper to give an opinion as to the speed of a vehicle when the accident occurred was not an abuse of discretion even though the officer had investigated some 3,000 accidents during his 30-year tenure as a police officer, had attended certain traffic schools, and was qualified to testify as an expert accident reconstructionist.

"In the case at bar, on leave to ask Winkleman some preliminary questions regarding his training and qualifications in accident reconstruction, Winkleman admitted that he had not determined several important factors in arriving at an opinion of the vehicles's rate of speed prior to impact. Winkleman had not considered the weight and load of the automobile, the degree of inclination of the road and the drag factor of the roadway.

* * *

"Here, the trial court did not abuse its discretion in not permitting Winkleman to answer the question since the evidence shows that Posey failed to properly establish the qualification of Winkleman as an expert witness."

438 N.E.2d at 1045-46 (footnote omitted).

This foundational requirement was also recognized in McCraney v . Kuechenberg, (1969) 144 Ind.App. 629, 634-35, 248 N.E.2d 171, 174 wherein we said:

"The question posed to the witness here did not include sufficient physical facts to justify an opinion as to speed by any non eye-witness, expert or otherwise. Nor did the prior evidence establish such physical facts.

"In the case before us the witness' testimony prior to the proffered opinion dealt with his knowledge subsequent to the accident concerning weather and road conditions, degree of darkness, presence of skid marks and debris, distance from such debris where the automobile was found at rest, the apparent distance that plaintiff-appellant's ward was thrown by impact and the portions of the vehicle which were damaged.

"There are other relevant factors indispensable here to a probative opinion on speed. Such factors may include, but are not necessarily restricted to, the weight and load of the vehicle as well as its condition and that of its brakes and tires. See Whittaker v. VanFossan, [ (4th Cir.1961), 297 F.2d 245] supra, and Ross v. Newsome, [ (5th Cir.1961), 289 F.2d 209] supra. Even if the officer were competent to render an opinion as to speed such opinion would not be admissible if he failed to take into account every factor essential to the formulation of that opinion. The specific question posed to the officer here, even when coupled with his prior testimony, lacked the requisite physical elements of foundation to allow any opinion, expert or otherwise concerning speed."

The party offering the expert witness has the burden of establishing the qualifications of the expert. McCraney. It is not the burden of the adversary to prove the proffered expert witness is not qualified. Chamness, 438 N.E.2d at 1045. We review the trial court's ruling on the proponent's affirmative burden using the abuse of discretion standard. McCraney.

In this case, we, as do the parties, assume the inquiry is beyond the ken of lay persons. Nevertheless, we find the trial court abused its discretion in admitting the opinion testimony of the state trooper regarding the speed of the dune buggy because Roberts failed to offer evidence of the officer's knowledge of and/or skill or experience with a scientific or occupational formula, calculation, etc. that would provide the sought after opinion, i.e. speed of the Martin vehicle, and failed to offer evidence of the existence of sufficient known facts for application of the scientific or occupational formula, calculation, etc.

The data upon which Brown relied in formulating his opinion of speed consisted, in essence, of his estimated distance of the debris and...