Roberts v. Roberts

• Citation: 523 P.3d 894
• Decision Date: 26 January 2023
• Docket Number: S-22-0136
• Parties: Robert M. ROBERTS, Appellant (Plaintiff), v. Benjamin and Kallie ROBERTS, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

523 P.3d 894

Robert M. ROBERTS, Appellant (Plaintiff),

v.Benjamin and Kallie ROBERTS, Appellees (Defendants).

S-22-0136

Supreme Court of Wyoming.

January 26, 2023

Representing Appellant: C. John Cotton, Cotton Law Office, PC, Gillette, Wyoming.

Representing Appellees: Curtis B. Buchhammer, Buchhammer & Ward, P.C., Cheyenne, Wyoming.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

FOX, Chief Justice.

[¶1] Robert M. ("Mike") Roberts was invited by his son, Benjamin ("Ben") Roberts, to his house to watch fireworks. The family went to the back porch and Mike¹ stepped off the edge of the porch and fell, injuring his shoulder and foot. Mike sued the homeowners, Ben and Kallie Roberts. The jury returned a verdict finding Ben and Kallie not negligent. Mike appeals and we affirm.

ISSUES

[¶2] Mike presents two issues on appeal:

1. Did the district court abuse its discretion by barring Ben and Kallie's testimony regarding whether a hypothetical hole should have been filled?

2. Did the district court abuse its discretion by allowing testimony regarding Mike's alcohol consumption on the day of the accident?

FACTS

[¶3] On Friday, August 16, 2019, Mike was at his son and daughter-in-law's house when he fell and was injured. Mike had spent the day doing yard work around his house, working most of the morning before taking a break around noon to have lunch and a beer. He stopped again around 3:00 p.m. for a snack and another beer. At around 5:00 p.m., Mike cleaned up and had a light meal before heading to his son's house to watch the fireworks. He packed a cooler with six to eight "tall boys" and drove with his wife to his son's house.

[¶4] Mike arrived around 8:50 p.m., ate dinner, had anywhere from a few sips of beer to two full beers,² and followed his wife, daughter-in-law, and son onto the deck for the fireworks display. As Mike stepped onto the deck, he took two steps to the right and stepped off the deck which was about ten inches above the ground. Mike testified something trapped his foot once he hit the ground causing him to fall forward. As he fell, he felt two pops in his ankle and foot, then landed forcefully on his right shoulder. Mike was taken to the hospital via ambulance where he was instructed to see a specialist for both injuries. A short time later, Mike had surgeries to repair his foot and install a partial shoulder replacement. Mike filed suit alleging his son negligently maintained his yard which caused his injury.

[¶5] Several evidentiary issues arose pretrial; two are relevant on appeal. Ben and Kallie filed a motion in limine to exclude testimony relating to a hypothetical hole. The district court granted the motion holding any such testimony went to the standard of care and was inadmissible. Mike filed a motion to exclude any testimony relating to his intoxication or drunkenness. The motion was granted in part and denied in part. Evidence was allowed regarding Mike's alcohol consumption that day, but testimony as to whether Mike was legally intoxicated was not. Mike argues both district court rulings were an abuse of discretion.

STANDARD OF REVIEW

[¶6] A trial court's ruling on an evidentiary issue is entitled to considerable deference and reviewed for abuse of discretion; it will not be overturned unless the ruling lacks a legitimate basis. Lackey v. Lackey , 2022 WY 22, ¶ 32, 503 P.3d 92, 98 (Wyo. 2022) (citing Jontra Holdings Pty Ltd v. Gas Sensing Tech. Corp. , 2021 WY 17, ¶ 58, 479 P.3d 1222, 1239 (Wyo. 2021) ). We need only consider whether the trial court could reasonably conclude as it did. Jontra , 2021 WY 17, ¶ 58, 479 P.3d at 1239 (citing Matter of LDB , 2019 WY 127, ¶ 43, 454 P.3d 908, 921 (Wyo. 2019) ).

DISCUSSION

I. The district court properly excluded standard of care testimony.

[¶7] Mike argues that Ben and Kallie's testimony regarding whether a hypothetical hole should be filled is an admission by a party opponent and the district court erred in refusing to admit the statement into evidence. See Wyoming Rule of Evidence 801(d)(2). Hearsay is generally inadmissible, but a statement is not hearsay if it "is offered against a party and is ... his own statement ...." Id. In depositions, both Ben and Kallie were asked "[i]f this hole were there before Mike fell, you should have discovered it and fixed it?" to which they both agreed. This testimony was barred by the district court, not on grounds that it was hearsay but because the testimony went to the standard of care. The trial court did not abuse its discretion by barring the testimony.

A. An admission of a party opponent under W.R.E. 801(d)(2) is not necessarily admissible.

[¶8] Mike first argues that all admissions of a party opponent are admissible. That is not the case. Federal courts have expressly analyzed whether Fed. R. Evid. 801(d)(2) is subject to scrutiny under other rules of evidence.³ Aliotta v. Nat'l R.R. Passenger Corp. , 315 F.3d 756, 763 (7th Cir. 2003) ; Mister v. Northeast Ill. Commuter R.R. Corp. , 571 F.3d 696, 699 (7th Cir. 2009). "[R]ules calling for generous treatment of party-opponent admissions still do not stand for the proposition that Rule 801(d)(2) trumps all other Federal Rules of Evidence." Aliotta , 315 F.3d at 763 (emphasis in original) (holding admissions by a party opponent are still subject to other rules of evidence, including Fed. R. Evid. 403, 701, 702, etc., to determine admissibility); see also Mister , 571 F.3d at 699 ("After statements are classified as non-hearsay under Rule 801(d)(2)(D), ‘the question remains whether there are other objections.’ "). Even assuming the disputed statements were the admissions of a party opponent, they must survive scrutiny under other applicable rules of evidence.

B. Lay witness cannot testify to standard of care.

[¶9] "It is well-established that the court instructs the jury as to the rules of law and that the jury applies the facts as they find them to those rules." United States v. Grismore , 546 F.2d 844, 849 (10th Cir. 1976) (citing Delli Paoli v. United States , 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), overruled on other grounds by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ); see also Specht v. Jensen , 853 F.2d 805, 808 (10th Cir. 1988) ("It is not for witnesses to instruct the jury as to the applicable principles of law, but for the judge." (quoting Marx & Co. v. Diners’ Club Inc. , 550 F.2d 505, 509-10 (2d Cir. 1977) )); United States v. Shamo , 36 F.4th 1067, 1078 (10th Cir. 2022), cert. denied , ––– U.S. ––––, 143 S.Ct. 333, 214 L.Ed.2d 148 (2022). Even an expert witness may only testify to an ultimate issue if it is necessary to "assist the trier of fact in understanding the evidence or in determining a factual issue." Okland Oil Co. v. Conoco Inc. , 144 F.3d 1308, 1328 (10th Cir. 1998) (citing Werth v. Makita Elec. Works, Ltd. , 950 F.2d 643, 647-48 (10th Cir. 1991) ). An expert witness cannot state legal conclusions by applying the law to the facts because such testimony is "devoid of helpfulness to the trier of fact." United States v. Simpson , 7 F.3d 186, 189 (10th Cir. 1993) ; see also Okland Oil Co. , 144 F.3d at 1328 (citing A.E. By & Through Evans v. Indep. Sch. Dist. No. 25, of Adair Cnty., Okla. , 936 F.2d 472, 476 (10th Cir. 1991) ).

[¶10] Testimony to the standard of care is unnecessary and unhelpful when it involves matters an average juror can understand. Cramer v. Powder River Coal, LLC , 2009 WY 45, ¶ 43, 204 P.3d 974, 985 (Wyo. 2009) (holding opinion testimony regarding violation of building code was inadmissible where the regulations determining the standard of care could be understood by a jury without further explanation); Hulse v. First Am. Title Co., 2001 WY 95, ¶ 60 n.9, 33 P.3d 122, 141 n.9 (Wyo. 2001) (holding expert testimony was unnecessary where statutes defining the standard of care for real estate professionals were clear and testimony to further explain the standard to the jury was unhelpful); Tozzi v. Moffett , 2018 WY 133, ¶ 36, 430 P.3d 754, 764 (Wyo. 2018) ; Vassos v. Roussalis , 625 P.2d 768, 772 (Wyo. 1981) ("When the circumstances in which the fictitious reasonable person acts are within the common knowledge of the jury, the jury does not need assistance in comprehending the standard fixed by the court."). Further, opinion testimony that invades "the field of common knowledge[,] ... concerns matters of common sense, or is directed towards lay matters that the trier of fact can understand on its own, is inadmissible since the trier of fact is not assisted in resolving the issues by such testimony." 31A. Am. Jur. 2d Expert and Opinion Evidence § 30 (2012).

[¶11] Testimony is also inadmissible when a jury is as competent to form an accurate opinion as the witness or when a layperson's normal experiences permit them to draw proper conclusions from the facts. Id. Opinion testimony may not "usurp the role of the court in determining the applicable law" as this testimony "does not aid the jury in making a decision; rather, it undertakes to tell the jury what result to reach and thus attempts to substitute the expert's judgment for the jury's." Id. at § 97. The rationale is equally applicable to lay witness testimony. McGill v. State , 2015 WY 132, ¶ 10, 357 P.3d 1140, 1144-45 (Wyo. 2015) ("Lay opinion testimony will not be helpful to the jury when the jury can readily draw the necessary inferences and conclusions without the aid of the opinion[,] ... providing assurance against the admission of opinions which would merely tell the jury what result to reach." (quoting United States v. Diaz-Arias , 717 F.3d 1, 12 (1st Cir. 2013) )) (emphasis in original).

[¶12] The standard of care in this case is quite simple and set forth in the jury instruction: the owner of a property must "act as a reasonable person in maintaining the property in a reasonably safe condition in view of all the circumstances[.]" The record in this case did not clearly establish that a hole existed. Ben...