Seaton v. State of Wyo. Highway Com'n, Dist. No. 1

• Decision Date: 07 December 1989
• Docket Number: No. 88-284,88-284
• Citation: 784 P.2d 197
• Parties: Lisa Lynn SEATON, Appellant (Plaintiff), v. The STATE OF WYOMING HIGHWAY COMMISSION, DISTRICT NO. 1, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 197

784 P.2d 197

Lisa Lynn SEATON, Appellant (Plaintiff), v. The STATE OF WYOMING HIGHWAY COMMISSION, DISTRICT NO. 1, Appellee (Defendant).

No. 88-284.

Supreme Court of Wyoming.

Dec. 7, 1989.

Charles E. Graves and Jane A. Villemez of Graves, Santini & Villemez, P.C., Cheyenne, for appellant.

Bruce A. Salzburg and Elizabeth Z. Smith of Herschler, Freudenthal, Salzburg, Bonds & Rideout, P.C., Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice.

Appellant Lisa Lynn Seaton (Seaton) presents herself as a passenger on a motorcycle who sued the driver and the Wyoming State Highway Commission (Highway Department) for extremely serious injuries sustained when the motorcycle skidded through loose gravel on the highway and battered her against a sign post. On appeal, following her favorable jury verdict against the driver, an unfavorable verdict favoring the Highway Department, Seaton presents trial error contentions of the exclusion of an investigating officer's report, denied re-redirect examination, erroneous standard of care instruction and improper defense counsel final argument relating to the effect of joint and several liability. We examine each of the contentions of error and affirm the jury verdict favoring that defendant.

I. Issues

Seaton stated as her appellate issues whether:

1. * * * the notes taken at the accident scene by Deputy Van Alyne, in his capacity as an investigative law enforcement officer for Laramie County, should have been admitted into evidence by the trial court pursuant to Rule 803(8)(C) of the Wyoming Rules of Evidence.

2. * * * the trial court abused its discretion in denying Appellant re-redirect examination of her expert witness to explain computations elicited for the first time on re-cross examination.

3. * * * Instruction No. 9 misstates Wyoming law by conditioning the state's liability for a defective highway condition upon notice to the state of the condition and the risk involved and upon absence of such notice to highway users 4. * * * defense counsel's comments in closing argument on the effect of joint and several liability substantially prejudiced Appellant's right to a fair trial.

Additionally and almost parenthetically, Seaton also raises what she characterizes as an issue of the sufficiency of the evidence to support the jury's determination that the Highway Department was entirely without fault. That characterization, however, is perhaps misapplied. The thrust of Seaton's argument, rather than sufficiency, seems to address harmless error concepts to be applied if we should determine she is correct regarding any one of her assignments of error.

II. Facts

At approximately 1:30 a.m. on July 6, 1985, Seaton accepted a ride home from the Cheyenne Club on a borrowed motorcycle driven by an acquaintance, Edward Riekens, Jr. (Riekens). Both she and Riekens had been drinking at the downtown Cheyenne bar since 11:00 that evening. They proceeded to a parking lot a few blocks away where they met some friends and made plans to go to a party south of town. During this time, Seaton developed some concerns regarding the driver's ability to handle the motorcycle.

As the group from the parking lot headed south on South Greeley Highway, approaching the intersection with Interstate 80, Riekens accelerated to nearly sixty miles per hour, moving into the left-hand lane and back into the right-hand lane on a gently curving upgrade. The posted speed limit on that section of highway is forty miles per hour. While maneuvering into the right-hand lane, Riekens glanced over his right shoulder to see where his friends were. Facing forward again, he found himself skidding off the right edge of the travel lane and encountered gravel laying three feet from the gutter beyond the turn lane to the Interstate 80 westbound approach ramp. The motorcycle slid into the curb, became airborne and came to rest against the concrete abutment of the Interstate 80 overpass.

After the vehicle struck the curb, Seaton's extended right leg hit a post, stripping her from the motorcycle and her inertia carried her into a second post. She fractured every major bone in her right leg and both her leg and lower abdomen were seriously wounded. She continues to suffer eighty-five percent impairment of her right leg. Seaton filed suit, naming as defendants the Wyoming State Highway Commission for its failure to correct the dangerous condition created by the accumulation of gravel at the edge of the highway, Riekens and two of his friends who allegedly had been drag racing with him at the time of the accident. Prior to trial, Seaton settled her claims against Riekens' two friends and the matter went to trial to determine the negligence of Riekens and the Highway Department. The jury found 100% against Riekens, 0% against the Highway Department and awarded $390,000 in damages for the serious injuries, extensive medical expenses and permanent disability which resulted. Seaton appeals from the no-fault Highway Department verdict. Riekens did not appeal.

III. The Van Alyne Notes

Deputy Robert Van Alyne of the Laramie County Sheriff's Department was one of the first law enforcement officers to arrive at the scene of the accident. He delivered his investigative notes which identified witnesses and mapped out the location of various items of physical evidence to the chief investigative officer, Wyoming Highway Patrolman Robert Kotzbacher. Included in those handwritten notes was the following controversial entry which, Seaton contends, represents Van Alyne's evaluation of the cause of the accident:

Initial point of contact with gravel, causing accident: 192' 10"' No. of So. curbline westbound on Ramp I-80 2' 9"' E. of W. curbline I-180.

Unfortunately, the parties were precluded from exploring this contention with Van Alyne by his untimely death less than a month later. ¹ Pursuing her theory that Van Alyne's recitation supported the Highway Department's liability, Seaton attempted to introduce the Van Alyne notes during the direct examination of Patrolman Kotzbacher.

In response to the Highway Department's hearsay objection, Seaton pointed to Kotzbacher's testimony that Van Alyne had taken the notes pursuant to his duties as a Deputy Sheriff and that the notes had been incorporated into the Highway Patrol's investigative file on the accident. She asserted those notes were admissible under the "public records" exception to the hearsay rule as set forth in W.R.E. 803(8)(C). ² The trial court, following argument on the issue, determined the notes contained Van Alyne's opinion on an ultimate question of fact and were properly excluded under this court's holdings in Harmon v. Town of Afton, 745 P.2d 889 (Wyo.1987) and Meyer v. Kendig, 641 P.2d 1235 (Wyo.1982). Furthermore, the trial court concluded the challenged notes did not conform to the "official record" exception to the hearsay rule despite their incorporation in the records of the Highway Patrol. We agree with the exclusion on the latter basis.

There is no doubt that W.R.E. 803(8) permits the admission of certain out-of-court assertions of an investigative officer to prove the truth of the matters asserted. Subsections (B) and (C) of the rule specifically permit the introduction of the first-hand observations and derivative factual findings of a reporting officer. The problem in the present case is the portion of the Highway Patrol's records which Seaton sought to admit was not a declaration of Patrolman Kotzbacher's first-hand knowledge nor did that portion contain the factual findings of his investigation. At most, it contained certain factual assertions by a witness upon which Patrolman Kotzbacher's findings may, or may not, have been based. Such assertions may be admitted solely to establish the fact they were made. They are not admissible to prove the truth of the declarations of that third party because they are out-of-court declarations of someone other than the reporting officer whose records are under consideration. Stated succinctly, those assertions of a witness other than the investigating officer who prepared the report are "hearsay within hearsay." ³

It is clear from the record in the present case that, at the time Seaton sought to introduce the Van Alyne notes, Patrolman Kotzbacher had not as yet given any testimony regarding either the measurements he took at the scene or his opinion regarding the cause of the accident. The contents of the Van Alyne notes could then serve no impeachment purpose. Seaton clearly sought the introduction of those notes solely to prove the truth of what she construed the Van Alyne comments to determine. Within the context of Patrolman Kotzbacher's official report, those notes cannot be said to have set forth either the first-hand knowledge or factual findings of a Highway Patrolman who made his own investigation and filed the official report. Thus, the notes were merely the hearsay of an outsider to the agency whose report was under consideration and were only admissible for Seaton's intended purpose if they could, independent of their inclusion in Patrolman Kotzbacher's report, satisfy a recognized hearsay exception. ⁴ Seaton failed to lay any foundation to convince the trial court or this court that such might have been the case. We therefore affirm the trial court's decision to exclude the Van Alyne notes.

IV. The Re-Redirect of Dr. Limpert

Seaton called Dr. Rudolph Limpert as an expert in accident reconstruction to prove the gravel on the highway contributed substantially to the occurrence of the accident. During redirect examination of Dr. Limpert, Seaton's counsel posed a hypothetical question designed to show Riekens could have maintained control over the motorcycle, avoided the curb and negotiated the gentle curve on South Greeley Highway had the gravel not been present. Counsel for Seaton, having elicited an opinion of the speed of the motorcycle...