Ruddock v. Lodise, Docket No. 67018

• Decision Date: 14 June 1982
• Docket Number: Docket No. 67018
• Parties: Roger L. RUDDOCK and Carol Ruddock, his wife, Benjamin Ruddock and Tabitha Ruddock, by their next friend, Roger L. Ruddock, Plaintiffs-Appellants, v. James J. LODISE and the Board of County Road Commissioners of the County of Jackson, jointly and severally, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 663

320 N.W.2d 663

413 Mich. 499

Roger L. RUDDOCK and Carol Ruddock, his wife, Benjamin

Ruddock and Tabitha Ruddock, by their next friend, Roger L. Ruddock, Plaintiffs-Appellants, v. James J. LODISE and the Board of County Road Commissioners

of the County of Jackson, jointly and severally,

Defendants-Appellees.

Docket No. 67018.

Supreme Court of Michigan.

June 14, 1982.

Kenneth E. Prather, P. C., Detroit, for plaintiffs-appellants.

Stanton, Bullen, Nelson, Moilanen & Klaasen, P. C. by Charles A. Nelson, Jackson, for Jackson County Road Com'rs.

PER CURIAM.

The trial court in this case excluded the deposition testimony of one of plaintiffs' expert witnesses. We conclude that the exclusion of this testimony was clearly erroneous and warrants a reversal and a remand for new trial.

I

Plaintiff Roger Ruddock was injured when his motorcycle collided with an automobile being driven by defendant James T. Lodise. The accident allegedly occurred when the defendant, in an attempt to pass other traffic in his lane, pulled into the lane of oncoming traffic, striking the motorcycle on which Mr. Ruddock was riding. The accident allegedly occurred in a no-passing zone which was marked with signs on each side of the road and which ordinarily would have been marked with a solid yellow stripe in the center of the road. There was evidence, however, that on the day of the accident, August 8, 1977, the solid yellow stripe was not present because the road had recently been resurfaced and the stripe had not yet been repainted.

The plaintiffs filed suit against defendant Lodise, claiming that Lodise was negligent in the operation of his automobile. Plaintiffs also sued defendant Board of County Road Commissioners of the County of Jackson, alleging that the road commission failed to maintain the road in a reasonably safe condition. The jury returned a verdict of no cause of action against the road commission but awarded damages against Lodise. The plaintiffs accepted the insurance policy limits in settlement of the judgment against defendant Lodise. However, plaintiffs appealed the judgment in favor of defendant board of county road commissioners.

The Court of Appeals, in an unpublished per curiam opinion, affirmed.

II

At trial, the plaintiffs wished to present the deposition testimony of Dr. Paul Olson, at that time an employee of the Highway Safety Research Institute. In response to a question from counsel, Dr. Olson indicated that the particular section of the roadway involved in this case was not maintained in a way that would allow safe use by individuals in automobiles. His conclusion was premised on the existence of only no-passing signs, the location of the no-passing zone directly east of a curve ("so that by the time a person exits from that curve and heads toward the no-passing zone there is a relatively limited distance in which an individual can determine that there is another no-passing zone ahead"), and the difference of this particular no-passing zone and the one that preceded it to the east (which was the direction Lodise was coming from). An additional reason for his conclusion focused on the "poor conspicuity" of the no-passing sign. The failure to have some additional warning at that sign, preferably lines, made the no-passing zone relatively unsafe.

"From a human factors engineering standpoint" the witness opined that the sign involved here was "sufficiently inconspicuous that I would not be at all surprised that more conspicuous signs are missed, not seen or at least not reacted to every day. This fact, * * * that signs are often not seen or reacted to is reflected in traffic engineering standards which call for more than one warning of critical situations--such as passing zones". Olson opined the ultimate question that the collision was brought about by Lodise's failure to properly identify a no-passing zone which was inadequately marked. The collision would not have occurred had the road been properly marked.

The trial court refused to admit the deposition testimony of Dr. Olson. The trial court's rationale for excluding the proffered evidence was that it would usurp the function of the jury. The court reasoned:

"It seems to me [sic ] would invade the province of the jury to the extent that if they believed Mr. Olson, there is only one way they could go, and that would be to hold against the defendant road commission. I think he's going too far, and I think all of this can be done to [sic ] the jury on the basis of the same evidence or admissible part of the evidence that was considered...