Thavenet v. Davis

• Decision Date: 17 February 1999
• Docket Number: No. 97-498,97-498
• Parties: Dwayne M. THAVENET, Teri Thavenet, Adam Thavenet, Kylie Thavenet, and Jason Thavenet, Minors, By Their Parent and Next Friend, Teri Thavenet, Appellants, v. Charles DAVIS, Appellee, and William B. Wilcox and Road Runner Distributing Service, Inc., Defendants.
• Court: Iowa Supreme Court

Page 233

589 N.W.2d 233

Dwayne M. THAVENET, Teri Thavenet, Adam Thavenet, Kylie Thavenet, and Jason Thavenet, Minors, By Their Parent and Next Friend, Teri Thavenet, Appellants, v. Charles DAVIS, Appellee, and William B. Wilcox and Road Runner Distributing Service, Inc., Defendants.

No. 97-498.

Supreme Court of Iowa.

Feb. 17, 1999.

Daniel D. Bernstein of William J. Bribriesco & Associates, Bettendorf, for appellants.

John W. Hayek and Joseph T. Moreland of Hayek, Hayek & Brown, L.L.P., Iowa City, for appellee.

Considered en banc.

SNELL, Justice.

This case is reviewed further by our court following a decision by the Iowa Court of Appeals that affirmed a jury verdict in defendant's favor. We now vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for a new trial.

I. Background Facts and Proceedings

On February 14, 1995, Dwayne Thavenet was driving east on Interstate 80 near Iowa City when a truck driven by Charles Davis, traveling westbound on Interstate 80, crossed the median and struck his car. Thavenet sustained fractures to his clavicle and ankle. Thavenet, his wife, and children filed a petition against Davis alleging his negligence was the cause of plaintiffs' injuries and damages.

At trial, evidence was presented that Davis was driving a semi truck without a trailer attached, a "bobtail." The highway was one hundred percent ice covered at the time of the accident; however, these freezing conditions had occurred quickly. Davis was the third in a row of three semis in the left lane when a semi truck in the right lane jackknifed. Davis veered left to avoid the semi that braked in front of him. Davis crossed the median and entered the eastbound lanes of Interstate 80 where he collided with Thavenet's car. Davis testified he was traveling at a rate of fifty to fifty-five miles per hour and was approximately twenty-five to thirty-five feet behind the semi in front of his bobtail.

The jury returned a verdict for the defendant and the district court entered judgment in the defendant's favor. Plaintiffs' subsequent motion for new trial was overruled and plaintiffs appealed. We transferred the case to the court of appeals. The court of appeals decided three evidentiary issues of which plaintiffs seek review of one. We review that issue and plaintiffs' claim that the court's instructions on legal excuse and sudden emergency constituted legal error.

II. Opinion Testimony

At trial plaintiffs proposed to introduce portions of testimony from the deposition of Brad Swyers, an expert witness intended to be used by defendant, who was deposed by plaintiffs. In response, defendant said that other testimony from Swyers' deposition would be offered. That included Swyers' response to plaintiffs' questions regarding the cause of the accident. Swyers testified that in his opinion the primary cause of the collision was the jackknifed truck, which caused Davis to be faced with a sudden emergency. Plaintiffs objected to these portions of the deposition, arguing that Swyers was acting outside of his area of expertise as a trucking expert when he used the term sudden emergency in his answers to interrogatories. The trial court ruled that it was going to permit the reading of the deposition questions and answers of Swyers proposed by defendant and objected to by plaintiffs. Plaintiffs, thereupon, being concerned that prejudice would result from reading the expert's legal conclusions to the jury, did not offer the deposition testimony of Swyers. Plaintiffs now claim that their tactical decision was a necessary consequence of the court's ruling, which was in error, and prejudiced plaintiffs' case. Reversible error is predicated on this ruling.

We review this issue based on our standard that opinion evidence, lay or expert, is admissible largely as a discretionary matter with the trial court. Wadle v. Jones, 312 N.W.2d 510, 515 (Iowa 1981). We will not interfere with the trial court's ruling on admissibility unless there exists a manifest abuse of discretion. Renze Hybrids, Inc. v. Shell Oil Co., 418 N.W.2d 634, 639 (Iowa 1988).

Iowa Rule of Civil Procedure 145(a) provides:

If a party offers only part of a deposition, his adversary may require him to offer all of it relevant to the portion offered; and any other party may offer other relevant parts.

The trial court's ruling that would have allowed defendant to introduce parts of Swyers' deposition, to which plaintiffs objected followed this rule. Cf. State v. Austin, 585 N.W.2d 241, 243-44 (Iowa 1998) (other party permitted to introduce explanatory evidence in interest of fairness under Iowa Rule of Civil Procedure 106(a)).

Nevertheless, plaintiffs contend that they should be permitted to object to the answers to their own questions put to Swyers at the deposition, citing Iowa Rules of Civil Procedure 158(d) and (e). Those rules preserve most objections to testimony taken by deposition for trial time. Plaintiffs believe that their objections to Swyers' opinion as to the primary causes of the accident should have been sustained as inadmissible legal conclusions and that their objections come within the protection of Iowa Rules of Civil Procedure 158(d) and (e).

Plaintiffs seek further support from our discussion in Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 899 (Iowa 1980), as follows:

The above authorities lead us to believe that in the situation where the opponent (plaintiff) offers at trial deposition questions propounded by the other party (defendant) and answers received thereto, then the other party has the right to object at trial under the "rules of evidence," rule 144, to any such questions or answers. This right is without regard to the provisions of rules 158(d) and (e), which we believe apply only to the situation where the propounder of the deposition questions is offering the deposition into evidence at trial; however, those rules apply only as to that portion of the deposition wherein he asked the questions. Therefore, rules 158(d) and (e), did not operate to restrict defendant's right to object at trial, on any grounds, to the Wardle deposition questions defendant propounded and the answers thereto.

These statements in Osborn were made based on our finding that it was proper for defendant to make objections at trial to the questions and answers in the Wardle deposition which was taken by defendant but offered by plaintiff. We cited Iowa Rule of Civil Procedure 144 providing for the use of deposition testimony at trial "so far as admissible under the rules of evidence." We also held that rules 158(d) and (e) did not operate to restrict defendant's right to object at trial, on any grounds, to the Wardle deposition questions defendant propounded and the answers thereto.

In the case at bar, the Thavenets are in the same position as plaintiff Osborn in that they offered Swyers' deposition in evidence pursuant to rule 144(d) (deposition of expert witness retained specifically for litigation may be used for any purpose). As held in Osborn, defendant Davis had the right to offer in evidence at trial the questions and answers of Swyers propounded by plaintiffs. However, plaintiffs are not, by offering the deposition testimony of Swyers taken by them, foreclosed at trial from objecting to inadmissible questions and answers, under the rules of evidence. Cf. Sanderson v. Steve Snyder Enters., Inc., 196 Conn. 134, 491 A.2d 389, 393 (1985) (plaintiffs had right to omit hearsay statements in their initial offer of deposition testimony and to object to entry of those statements by defendant). Thus, plaintiffs could and did object to defendant's proposed questions and answers by Swyers. The trial court, after off-the-record arguments and further arguments outside the presence of the jury, ruled that if plaintiffs were going to submit Swyers' testimony, the court was going to permit all of defendant's proposed questions and answers.

Gleaned from the transcript, we find that plaintiffs alerted the court to their objection that Swyers' testimony which defendant intended to offer that the primary cause of the collision was the jackknifed truck which caused Davis to be faced with a sudden emergency was inadmissible because Swyers was not a reconstruction expert and his opinion involved a legal conclusion that improperly invaded the province of the jury. As such, the objection of plaintiffs was proper and should have been sustained. See Hyler v. Garner, 548 N.W.2d 864, 868 (Iowa 1996) (noting expert witness must be qualified to answer particular question propounded); Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 827 (Iowa 1993) (expert witness may not state opinions as to legal standards, citing committee comment to Iowa Rule of Evidence 704); accord Terrell v. Reinecker, 482 N.W.2d 428, 430 (Iowa 1992); Miller v. Bonar, 337 N.W.2d 523, 529 (Iowa 1983). When it was not, plaintiffs were thus presented with a Hobson's choice of offering Swyers' deposition testimony that included inadmissible opinion evidence or not offering any of the deposition testimony. This choice, precipitated by legal error, prevented plaintiffs from having the opportunity to have the jury consider admissible evidence in support of their case and having a fair trial. For this reason, we hold that legal error occurred that prejudiced plaintiffs in trying their case. We reverse on this issue and remand for a new trial.

III. Instruction on Sudden Emergency and Legal Excuse

For guidance, we comment on plaintiffs' assignment of error by the trial court in instructing on sudden emergency and legal excuse.

The trial court gave the following instructions on legal excuse.

INSTRUCTION NO. 19

Charles Davis claims that if you find that he violated the law in the operation of his vehicle, he had a legal excuse for doing so because the jackknifing of the Wilcox/Roadrunner truck presented a sudden emergency and made control of his...