Sommervold v. Grevlos
| Decision Date | 08 June 1994 |
| Docket Number | Nos. 18145,18146 and 18159,s. 18145 |
| Citation | 518 N.W.2d 733 |
| Parties | Jon SOMMERVOLD, Plaintiff and Appellant, v. Dave GREVLOS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Gary J. Pashby, Gregg S. Greenfield of Boyce, Murphy, McDowell & Greenfield, Lawrence L. Piersol of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellant.
Terence R. Quinn of Quinn, Eiesland, Day & Barker, Belle Fourche, James L. Hoy of Hoy & Hoy, Sioux Falls, for defendant and appellant.
Jon Sommervold (Sommervold) and Dave Grevlos (Grevlos) each appeal from adverse judgments entered after a jury awarded each of them nothing on their claims against each other for negligence. We affirm.
On June 16, 1986, some time between 9:50 p.m. and 10:05 p.m. 1 , Grevlos 2 was riding a bicycle west on Tomar Road in Sioux Falls. Sommervold 3 was riding a bicycle east on Tomar Road. Sommervold and Grevlos collided at the bottom of two steep 4 grades where Tomar Road curves slightly just west of Cliff Avenue. The cyclists' speeds were estimated from 28 to 40 miles per hour.
Grevlos had the light on his bicycle turned on while Sommervold did not have a bicycle light. The sun set at 9:10 p.m. and the amount of light was disputed 5. Apparently, neither saw the other until the collision occurred. The location of the collision was also disputed. Sommervold claimed that the collision occurred in his lane and Grevlos claimed that the collision occurred near the center of the road. The location of the center of the road was also in dispute because Tomar Road is not banked around the particular curve in question and cars have tended to drive closer to the south side of the curve with the result that the apparent center of the road is farther south than the geometric center of the road. The only eye-witness, Ian Moquist, a junior high school student, first told authorities that the collision occurred in the center of the road but testified at trial that the collision occurred in the south (Sommervold's) lane. It is undisputed that the riders collided right side to right side. 6 When help arrived, Sommervold was laying in the middle of the road and Grevlos was sitting near the south curb.
Sommervold sustained injuries which required medical attention that cost approximately $3,600.00. Grevlos' right shoulder was seriously injured and could not be repaired. Eventually, Grevlos' shoulder was fused to his arm resulting in the practical loss of use of his right arm.
Sommervold sued Grevlos and Grevlos counterclaimed. A jury trial was held September 1-4 and 8, 1992. The jury returned verdicts against each of the claimants awarding each of them nothing. The trial court entered a judgment based on the jury verdict and both claimants appeal.
The appeals embrace seven issues. Four relate to rulings on exhibits offered at the trial and three relate to jury instructions. We will deal with the evidentiary questions first.
The trial court's evidentiary rulings are presumed correct. Opp v. Nieuwsma, 458 N.W.2d 352, 357 (S.D.1990). The party claiming error must show a clear abuse of discretion, Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989), and prejudicial error, Shamburger v. Behrens, 380 N.W.2d 659, 661 (S.D.1986). The trial court properly exercised discretion if a judicial mind could reasonably have reached the conclusion the trial court reached. Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991).
Grevlos offered Exhibit E to show how dark it was on the evening of the collision. The photo was taken at 8:54 p.m. on August 30, 1992, more than six years after the collision. Testimony was offered to show that the light at 8:54 p.m. on August 30th approximated the light at 10:00 p.m. on June 16th (the date of the collision in 1986).
Generally photographs are admissible if they accurately portray something which a witness is competent to describe in words or where they are helpful to aid the verbal description of objects and conditions and provided they are relevant to a material issue. State v. Blue Thunder, 466 N.W.2d 613, 621 (S.D.1991); State v. Muetze, 368 N.W.2d 575, 586 (S.D.1985); State v. Holland, 346 N.W.2d 302, 307 (S.D.1984). In Johnson v. Chicago & Northwestern Ry. Co., 71 S.D. 132, 139-140, 22 N.W.2d 725, 729 (1946), photographs taken at or near the time of collision were held to be admissible. Even if relevant, the probative value of the photographs must outweigh their prejudicial effect. State v. Woodfork, 454 N.W.2d 332, 337 (S.D.1990).
Exhibit E was taken more than six years after the collision. Although it was offered to show how much light was available, the time and date were different. Particularly, the sun was 20% farther south on the horizon on August 30th in contrast to its location on June 16th. The trees in the area had six additional years of growth to obscure light. Cloud cover may have been different. The trial court noted that the photo was darker than the testimony indicated that the conditions were on the date and at the time of the collision. No foundation was laid to show that the aperture on the camera lens approximated what the eye would see. 7 Significantly, no eye-witness testified that Exhibit E approximated the light actually available on the date and at the time of the collision. In fact, Exhibit E was offered to impeach eye-witness Ian Moquist's description of the lighting conditions. The foundation for Exhibit E was not sufficient. A judicial mind could reasonably reach this conclusion. Therefore, the trial court exercised proper discretion in excluding Exhibit E.
Grevlos offered Exhibits F1 and F2 to show how far a light on a bicycle could be seen on the roadway in the vicinity of the collision under similar light at the approximate time of the collision. These video tapes were taken starting at 8:52 p.m. and concluding at 9:16 p.m. on August 28, 1992, more than six years after the collision. Testimony was offered to show that the light at 8:52 p.m. on August 28th was equivalent to the light on June 16th (the date of the collision in 1986). F1 was taken from Sommervold's vantage and F2 from Grevlos' vantage. The trial court found that F1 was not consistent with Sommervold's testimony and was much darker than the testimony and that F2 did not adequately recreate what a particular individual's eyes could or could not see.
Demonstrative evidence must be relevant, probative and nearly identical 8. State v. Jenkins, 260 N.W.2d 509, 511 (S.D.1977); State v. Bradley, 431 N.W.2d 317, 325 (S.D.1988). In Jenkins the court noted that conditions can seldom be duplicated exactly. However, when demonstrative evidence attempts to recreate an event rather than illustrate physical properties, it must be more nearly identical. Randall v. Warnaco, Inc., Hirsch-Weis Div., 677 F.2d 1226, 1234 n. 7 (8th Cir.1982). The impact of video reenactment is substantial. When people see something on television, they think it is real even when it is not.
Exhibits F1 and F2 were taken more than six years after the collision. The time and date were different. F1 was much darker than the testimony indicated. Twenty-three minutes passed during the filming which would make the end of the tape equivalent to 10:23 p.m. on the date of the collision, much later than any testimony (from 9:50 p.m. to 10:05 p.m.). The trial court found that the videos were not similar enough to the testimony and therefore their prejudice outweighed their probative value. A judicial mind could reasonably reach this conclusion. Therefore, the trial court exercised proper discretion in excluding the video tapes.
Grevlos offered a computer generated video animation to illustrate his accident reconstruction expert's testimony. The exhibit consisted of four components. Two video components were offered to show what Grevlos saw and what Grevlos would have seen if Sommervold would have had a light on his bicycle. One video component was offered to show that Sommervold should have seen Grevlos. The animation component was offered to "illustrate" Grevlos' expert's testimony.
SDCL 19-17-1(9) requires the proponent of computer generated evidence to describe the system and show that the program produced an accurate result. Then the animation must be relevant, probative and nearly identical. State v. Jenkins, supra, 260 N.W.2d at 511. The animation must fairly and accurately reflect the oral testimony of the witness and be an aid to the jury in understanding the issues. People v. McHugh, 124 Misc.2d 559, 476 N.Y.S.2d 721, 723 (N.Y.1984).
The animation is not similar enough to be admissible. The animation assumes that both bicycles were travelling 25 miles per hour but the evidence varied from 28 to 40 miles per hour. The animation also depicted the light from a streetlight cast clearly in a circle rather than diffused in an ellipse as shown by the evidence. The animation showed the wrong location (off center and west of the actual location) and the injuries to the riders were inaccurately depicted as being left side to left side when they were actually right side to right side 9. The trial court found that the exhibit added nothing to the testimony and would be more prejudicial than probative because A judicial mind could reasonably reach this conclusion. Therefore, the trial court exercised proper discretion in excluding the computer generated video animation.
SOMMERVOLD'S PICTURE OF A BLACK MARK IN THE ROAD
(AND ACCOMPANYING TESTIMONY OF ARLO SOMMERVOLD)
Sommervold offered Exhibit 21 to show where the collision occurred. The...
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