Nickles v. Schild

• Decision Date: 11 October 2000
• Docket Number: No. 21034.,21034.
• Parties: Larry NICKLES, as Guardian Ad Litem of Mark Nickles, a minor, Plaintiff and Appellant, v. Jay SCHILD, a minor, Defendant and Appellee.
• Court: South Dakota Supreme Court

617 N.W.2d 659

2000 SD 131

Larry NICKLES, as Guardian Ad Litem of Mark Nickles, a minor, Plaintiff and Appellant, v. Jay SCHILD, a minor, Defendant and Appellee.

No. 21034.

Supreme Court of South Dakota.

Argued March 21, 2000.

Reassigned August 31, 2000.

Decided October 11, 2000.

Rehearing Denied November 20, 2000.

C.E. Light and Michael Bornitz, Yankton, South Dakota, Attorneys for plaintiff and appellant.

Kristine L. Kreiter of Woods, Fuller, Schultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee. GILBERTSON, Justice (on reassignment).

[¶ 1.] Larry Nickles, the Guardian Ad Litem (Guardian) of Mark Nickles (Nickles) appeals the trial court's admission of expert testimony. We affirm.

FACTS

[¶ 2.] On May 5, 1996, Jay Schild (Schild), Nickles and Schild's younger brother, drove to the Human Services Golf Course in Yankton, South Dakota to play golf. All three boys were minors. Both Nickles and Schild had previously received golf instructions and had been taught some golfing rules.

[¶ 3.] After playing five holes, Schild and Nickles proceeded to the next tee box. Schild's younger brother was still on the fifth hole green retrieving his ball, which Nickles had knocked a short distance from the green. Schild proceeded to tee up his ball at the front center of the tee box and was preparing to hit his next drive. In the meantime, Nickles moved off the tee box approximately ten feet and was facing the previous green watching Schild's brother. Schild, who had seen Nickles walk off the tee box, stepped back from his ball and took three practice swings. On the third practice swing, Schild hit Nickles in the head, fracturing his skull and permanently injuring his left eye.

[¶ 4.] Guardian commenced a personal injury action against Schild for damages sustained as a result of Schild's negligence and failure to exercise reasonable care in swinging his golf club. Schild denied he was negligent and claimed that Nickles was contributorily negligent and assumed the risk of his injuries. During trial, Schild called Robert Boldus (Boldus) as an expert witness. Boldus was a former member of the Professional Golfer's Association and golf professional at Fox Run Golf Course in Yankton, South Dakota. Boldus had often given golfing lessons to junior golfers while at Fox Run.

[¶ 5.] At trial, Boldus explained the game of golf, rules of etiquette, and what Nickles should have known following his own golf lessons from Boldus at Fox Run. Schild then asked Boldus whether "as a golf professional," he had "formed any opinions as to what had happened in this case?" Nickles immediately requested permission to briefly interrogate Boldus for purposes of objecting to his opinion. During this interrogation, the following discussion occurred:

Q: (Nickles' Attorney): Mr. Boldus, as a professional golfer, a member of PGA or based upon your experience, have you had any training in evaluating liability or standards of care required in golf liability cases?

A: (Boldus): No, I haven't.

Nickles then objected to the opinion by Boldus regarding standards of care or the ultimate issue. The trial judge overruled Nickles' objection and allowed Boldus to give his opinion:

Q: (Schild's attorney): And could you tell the jury what opinions you have come to?

A: (Boldus): In my opinion it was an accident. But one of the players moved, and when you're in your preshot routine if you move, you back away from the ball six inches to a foot or one step, and then you take your practice swings. My opinion, somehow Mark Nickles had moved in the way of the swing and got hit.

....

Q: (Schild's attorney): In your opinion did [Schild] violate any standards of care?

A: (Boldus): No.

[¶ 6.] The jury returned a verdict in favor of Schild. Nickles appeals, raising the following issue:

Whether the trial court abused its discretion by permitting expert testimony from Boldus.

STANDARD OF REVIEW

[¶ 7.] Our standard of review in reviewing admissibility of expert testimony is well settled. We have often stated that:

[w]e review questions of admissibility of an expert witness' testimony under an abuse of discretion standard. We have long acknowledged that the trial court has broad discretion concerning the admission of expert testimony. The trial court's decision on such matters will not be reversed absent a clear showing of an abuse of discretion.

Maroney v. Aman, 1997 SD 73, ¶ 33, 565 N.W.2d 70, 78 (quoting Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 6, 552 N.W.2d 801, 805 (citations omitted)). Thus, for a reversal, Nickles must establish that no "judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820.

DECISION

[¶ 8.] Whether the trial court abused its discretion by permitting expert testimony from Boldus.

[¶ 9.] The admissibility of expert testimony is governed by SDCL 19-15-2 (Rule 702). See State v. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d 419, 421

(quoting State v. Raymond, 540 N.W.2d 407, 409 (S.D.1995)). Under SDCL 19-15-2,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (emphasis added).

See Maroney, 1997 SD 73, ¶ 34,

565 N.W.2d at 78.

[¶ 10.] Thus, under this statute, Nickles could have questioned Boldus on whether he possessed the "knowledge, skill, experience, training or education" to answer the question of "what happened in this case." However, Nickles failed to protect his record, because his sole question to Boldus for purposes of an objection, was: "have you had any training in evaluating liability or standards of care required in golf liability cases?" (emphasis added). Nickles failed to ask Boldus whether he possessed or lacked the "knowledge, skill, experience or education" by which he obtained the expertise to answer Schild's question of "what happened in this case." Under SDCL 19-15-2, an expert is not limited to testifying only upon those areas in which he or she has received formal training. Rather, when giving an opinion, an expert is allowed to draw upon all the knowledge, skill, or experience that he or she has accumulated. See Friendship Heights Assoc. v. Koubek, 785 F.2d 1154, 1159 (4th Cir.1986)

(noting that "the use of the disjunctive indicates that a witness may be qualified as an expert on any one of the five listed grounds."); Hammond v. Int'l Harvester Co., 691 F.2d 646, 653 (3rd Cir.1982) (stating that "an individual need possess no special academic credentials to serve as an expert witness.").

[¶ 11.] Moreover, while Boldus may not have had any formal classroom "training" in the applicable liability standards, it is clear Boldus was no novice at the game of golf. He was a former member of the PGA and a golf professional at Fox Run Golf Course in Yankton. While at Fox Run, he had often given golf lessons to junior golfers, which included golf etiquette and safety. He had even previously given golf lessons to Nickles. By any of these methods of acquiring the appropriate expertise or combination thereof, he could have qualified himself as an expert to testify as to "what happened."¹ [¶ 12.] It is quite clear from the testimony of Boldus and his vitae that he did have an opinion on the standards of care required in golf and the expertise to give such an opinion. The following testimony regarding the standard of care applicable to the game of golf was elicited from Boldus during direct testimony:

Q: When someone has addressed the ball and stepped back and they're doing their practice swings, what is the person's duty when they're doing those practice swings?

A: Well, basically there's nothing stated that says that you have to look around. You should be, when you begin your preshot routine, prior to taking your practice swings you should look and kind of [get] an idea where people are at so they are out of your way so you can take a swing. Once you begin your practice swings I think it's a duty of the other person to stay out of the way.

Q: So once, right before you start your preshot routine is when you have the duty to check what's going around?

A: Yes.

Q: And then as you start your preshot routine then it's the duty of those around you to become aware that that's what you're going to do, to watch?

A: Yes.

When asked whether he had formed any opinions as to what had happened in this case, Boldus replied:

In my opinion it was an accident. But one of the players moved and when you're in your preshot routine, if you move, you back away from the ball six inches to a foot or one step, and then you take your practice swings. My opinion, somehow Mark Nickles had moved in the way of the swing and got hit.

Boldus merely described, in his opinion, "what happened in this case" and that Schild's actions did not violate any standard of care concerning the game of golf.² He did not invade the province of the jury as Nickles suggests. Unlike the experts in Robbins v. Buntrock,³ 1996 SD 84, 550 N.W.2d 422 and Zens v. Harrison,⁴ 538 N.W.2d 794 (S.D.1995), Boldus did not testify as to the ultimate issue of negligence. In fact, Boldus did not discuss the issue of liability at all until he was asked upon cross-examination, "but one party is liable, aren't they?" Boldus responded: "I wouldn't —yah— I don't know about liable, but somebody [is responsible for that]." At that point any error was invited by Nickles.

[¶ 13.] Nickles' objection as to the qualifications of Boldus goes in part to formal training concerning the issue of ultimate liability. The ultimate liability of one of the parties is not the same as standard of care. One can violate a standard of care and still not be held liable. There could be further potential questions of contributory negligence,...