Price v. Garcia
| Decision Date | 07 August 2009 |
| Docket Number | No. 2007-CA-001344-MR.,2007-CA-001344-MR. |
| Citation | 291 S.W.3d 728 |
| Parties | Rachael PRICE, Individually and as Parent and Next Friend of Daezsa Price,<SMALL><SUP>1</SUP></SMALL> an Infant; and Waedell Harris, Appellants, v. Rosa GARCIA; and Yellow Cab Co., LLC, Appellees. |
| Court | Kentucky Court of Appeals |
Mark Joseph Smith, Maureen Sullivan, Louisville, KY, for Appellants.
Bradley D. Harville, Louisville, KY, for Appellees.
Before NICKELL and VANMETER, Judges; GRAVES,2 Senior Judge.
Rachael Price and Waedell Harris appeal from a judgment of the Jefferson Circuit Court entered on May 21, 2007, dismissing their personal injury claims with prejudice following a unanimous jury verdict in favor of Rosa Garcia and Yellow Cab Co. At the end of a three-day trial, jurors were unconvinced Price and Harris had proved they had incurred $1,000.00 in reasonably necessary medical expenses required for recovery under KRS 349.39-060(2)(b). The sole issue on appeal3 is whether the trial court properly admitted three items of testimony from the investigating officer, Sgt. Jessie L. Browning, who was neither listed nor qualified as an expert witness. Each of the pieces of challenged testimony bore on fault, an issue not reached by the jury. We now affirm.
This appeal stems from a two-car collision that occurred around 1:55 a.m. on January 9, 1999. Garcia was driving a Caprice Classic leased from Yellow Cab. She had picked up a fare4 at a bar in Louisville, Kentucky, and was driving him home. She was traveling east on Valley Station Road when she reached a small hill. As she traveled about halfway down the hill, her cab began sliding and slid to the bottom of the hill, where it fully blocked the roadway. Garcia testified that she had been in control of the cab until she crested the hill and had no warning the hill was a sheet of ice. Once the cab began sliding, Garcia put the car into neutral and steered into the direction of the slide to try to regain control of the vehicle.
As she tried to maneuver the taxi back into her lane, she was struck by a Honda Civic driven by Harris. Garcia testified that everything happened in a matter of seconds and that she did not see the Honda until the impact. After making certain her passenger was not injured, Garcia exited her cab and tried to check on the people in the Honda. Because of the icy roadway, Garcia could not stand when she got out of her cab but finally made her way to the Honda by holding on to the cars. Price and Harris ignored Garcia when she asked whether they needed help, so Garcia returned to her cab and waited for police to arrive. Sgt. Browning arrived within minutes of receiving the dispatch and closed the roadway until it was salted.
The Honda that hit the cab was owned by Price. She and her one-year-old daughter, Daesza, were passengers in the vehicle. Daesza was strapped into a car seat in the backseat of the Honda. The driver's left front bumper and quarter-panel of the Honda struck the right rear passenger door and quarter-panel of the taxi.
At trial, Harris testified that he was also traveling east on Valley Station Road at about fifteen miles per hour. He said it was snowing, there was snow on the side of the road, he did not recall any ice, and he did not recall the Honda sliding on ice. As he crested the hill, he saw a taxi at the bottom, completely blocking the roadway. Harris said he hit his brakes in an attempt to avoid colliding with the cab but the accident was unavoidable.
Harris's recollection was different during a pretrial deposition at which he testified that the roads were not bad when he, Price and her baby began their trip, but they were "real bad" as he drove down Valley Station Road. Harris stated he was driving slowly because the roads were getting icy. He had even turned off the radio so he could concentrate on the road. As he crested the hill, he saw the taxi blocking the road at the bottom of the hill. When he hit his brakes, the Honda slid. Harris surmised the cab had just slid too. Defense counsel impeached Harris at trial by reading portions of his deposition to the jury.
Harris worked for Beechmont Press at the time of the collision. He did not miss any work because of the impact. His forehead bled and he complained of neck and low back injuries. Harris went by ambulance to the hospital but he was not billed for the ride. His hospital bill was $44.94. Harris was treated by a chiropractor, Dr. Thomas Jacques, D.C., between January 1999 and July 1999. His bill for chiropractic treatment was $4,950.00.
At the time of trial in May 2007, Price was a physical rehabilitation nurse. However, at the time of the collision in January 1999, she was an emergency medical technician in the employ of Yellow EMS and Jefferson County EMS. She testified that Harris was driving her car at the time of the accident. They were traveling on Valley Station Road, came over a hill, and within seconds hit a taxi. From her perspective, the accident was unavoidable. On cross-examination at trial, Price said she could not say whether the roads were slick because she was not driving and she did not attempt to walk on the road after the collision. She testified that they had no trouble on the road until the moment of impact.
Like Harris, Price had more to say during her deposition, portions of which defense counsel read to the jury for impeachment purposes. Price said Harris was driving slowly, fifteen to twenty miles per hour, because the roads were becoming slippery; but until the accident, they did not realize the roads were slick.
Price testified at trial that EMS workers placed her on a spine board at the scene and drove her to the hospital by ambulance where she spent the night. She stated she had whiplash as well as shoulder, neck and back pain. She was also treated by Dr. Jacques for several months, primarily for neck pain. Price testified that her EMS bill was $167.16; her hospital bill was $430.73; and her bill from Dr. Jacques was $4,860.00.
Dr. Jacques testified about his treatment of both Price and Harris. Of specific relevance to Price, Dr. Jacques testified that Price suffers from scoliosis, which was not attributable to the collision. He also stated that Price would have been injured even if she had been wearing a seatbelt at the time of impact, but her injuries may have been reduced by a seatbelt.
Johnny Mansfield, a supervisor and thirty-three-year employee of Yellow Cab, was the only other witness called on behalf of Price/Harris. Mansfield investigated the collision and photographed the scene. After receiving word of the collision, it took him about one hour and fifteen minutes to reach the accident site. Upon arriving, he deemed Valley Station Road to be impassable and described it as being coated with what he estimated to be a one-quarter inch thick sheet of ice. Without any objection, Mansfield testified that it was still raining when he arrived at the accident scene and that he had to walk sideways or hold on to something to actually reach the vehicles. The cab and the Honda had not been moved when he arrived, so the photos he took showed the vehicles at their final resting places. Mansfield noticed other cars were off the road too. Salt trucks arrived while Mansfield was at the scene.
The focus of this appeal is the admissibility of the testimony from Sgt. Browning, the only witness called by the defense. Sgt. Browning investigated the collision. She has sixteen-years' experience in law enforcement, having served eleven of them in Kentucky. She was formerly with the Jefferson County Police Department and at the time of trial was employed by the Louisville Metro Police Department. Sgt. Browning served as a patrol officer for approximately nine years. Her assignment at the time of trial was teaching officers to train police recruits.
Price/Harris objected to Sgt. Browning testifying about road conditions since she did not see the accident happen and her testimony would be prejudicial because the roadway had worsened after the accident. Characterizing Sgt. Browning as a contemporaneous fact witness, the court overruled the objection and allowed the officer to testify that the roads were icy and that there was a solid sheet of ice on the grass when she arrived at the scene within seven minutes of the collision. Much of this testimony was cumulative of facts already established by Price, Harris and Garcia. Sgt. Browning went on to state she had heard announcements on local radio stations throughout her shift warning of dropping temperatures, of freezing rain, and predicted icing of roadways. She also remembered black ice on the road and being unable to stand on a flat surface at the scene without her feet sliding. Sgt. Browning described the scene that night as "incredibly treacherous for pedestrian and vehicular traffic[,]" and she did not recall having ever seen conditions that bad.
Next, Price/Harris objected to Sgt. Browning identifying the point of impact because she had not been listed as a defense expert under CR5 26.02. Sgt. Browning had testified she was trained to document the point of impact. Garcia/Yellow Cab responded that Sgt. Browning's testimony did not rise to the level one would expect an accident reconstructionist to give. The court overruled the objection because Sgt. Browning was not giving expert testimony, and she had not been asked to do so. The court did, however, sustain the objection to reconstruction questions without the laying of a proper foundation. The court went on to say that it would allow some latitude in questioning Sgt. Browning because of her experience. Thereafter, defense counsel asked the officer, based on her police report and photos of the scene, whether the Honda appeared to have been angled following the impact. Sgt. Browning testified that the Honda appeared to have been traveling somewhat "canted" or angled and that the cab appeared to be fully blocking one lane. She also testified that the Honda's...
To continue reading
Request your trial
-
Price v. Yellow Cab Co. of Louisville
...Statutes (KRS) 304.39–060(2)(b) to maintain the lawsuit. The judgment was affirmed in a subsequent appeal to this Court. Price v. Garcia, 291 S.W.3d 728 (Ky.App.2009). The sole issue raised on appeal related to evidence admitted concerning fault, an issue that the jury did not ultimately re......