Jones v. Sanilac County Road Commission
Jones v. Sanilac County Road Commission
Opinion of the Court
Plaintiff filed suit in her individual and representative capacities against the Sanilac
Defendant appeals as of right raising seven issues. Plaintiff cross-appeals as of right raising one issue. We first address the issues raised by defendant.
I
Did the trial court err by requiring defense COUNSEL TO REFER TO PLAINTIFF BY HER FORMER MARRIED NAME RATHER THAN HER CURRENT MARRIED NAME?
Prior to trial plaintiff filed a motion in limine to determine whether plaintiff should be addressed at trial as "Jo Ann Jones” (her previous married
Evidence presented at a hearing on the matter showed that many accounts and records were maintained in the name of Jo Ann Jones and several of plaintiff’s friends and co-workers who knew her previous to her remarriage referred to plaintiff as Jo Ann Jones. Based on this evidence the trial court concluded that plaintiff still maintains an identity under the name of Jones and, therefore, that it would be proper to address her by that name at trial.
However, it is the name which plaintiff herself uses that should be the appropriate form of address. Plaintiff regularly uses the name Hall and although for some purposes, such as her insurance checks, the mortgage for her farm land and loan papers on her current residence, she uses the name Jones, all those occurrences happened prior to her marriage in 1978. We believe that the court erred, and that under Wood, supra, plaintiff should have been referred to at trial as Hall. However, we do not believe that reversal is the proper remedy under the circumstances since: (1) plaintiff properly brought the motion before trial to avoid any impropriety or prejudice and the trial court made a ruling on this issue in her favor, (2) as determined by the trial court, interjection of plaintiff’s
II
Did the trial court erroneously admit the TESTIMONY OF DUANE DUNLAP AND THE INVESTIGATING POLICE OFFICERS?
At trial, plaintiff introduced evidence to illustrate that the intersection of Maple Grove and Nichol Roads was unsafe due to a visual obstruction in the southeast quadrant. There were no traffic control signs or speed signs at the intersection, which plaintiff argued were required for vision obstructed intersections under the standards established by the Association of State Highway and Transportation Officials and defendant’s rules. Both lay and expert witnesses testified that a vehicle proceeding westbound on Nichol Road and a vehicle proceeding northbound on Maple Grove Road would be unable to perceive the approaching traffic due to a ridge or rise in the southeast quadrant. The investigating officers, Sergeants Thomas and Kenny, gave testimony establishing the point of impact of the Jones and Bye vehicles and the results of a test conducted on January 16, 1977, to determine the sight distances at the intersection. The expert testimony of Duane Dunlap
A
Defendant argues that Duane Dunlap did not possess sufficient qualifications to testify as an expert in traffic engineering or accident reconstruction. The qualification of a witness as an expert is a matter for the discretion of the trial court and it is "incumbent on the person offering an expert witness to show that the witness possesses the necessary learning, knowledge, skill or practical experience to enable him competently to give such testimony”. Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976). The decision of the trial court regarding the qualifications of an expert will not be reversed absent an abuse of discretion. Wood v Posthuma, 108 Mich App 226; 310 NW2d 341 (1981).
Dunlap has three engineering degrees. He worked at the Highway Safety Research Institute between 1969 and 1976, where he dealt with crash characteristics of roadside structure, problems with curve and grade combinations in roadways, and accident causation and reconstructions. Since 1976, Dunlap has worked as an independent consulting engineer. He has been involved in reconstructing approximately 100 to 200 accident cases, including 50 to 100 cases involving highway safety or design factors. He has written numerous articles concerning highway safety and is familiar with the basic standards promulgated by the American Association of State Highway and Transportation Officials regarding the design and maintenance of roadways. The record amply supports the trial court’s determination.
Defendant argues that the police officers and Dunlap possessed insufficient knowledge of the pertinent facts to formulate conclusions relative to the cause of the involved automobile accident. Defendant argues that Sergeant Thomas’s opinion as to the point of impact was based on no credible evidence. Defendant further argues that Dunlap’s opinion as to the cause of the accident was rendered without an examination of the mechanical condition of the vehicles involved in the accident and a determination of the physical state of the involved drivers.
Sergeant Thomas established the point of impact based on his observation of the final resting place of the vehicles, chunks of snow and ice debris in the roadway and a scuif mark in the intersection. An expert’s opinion may be based solely on debris and skid marks observed at the scene. Motorists Mutual Ins Co v Howard, 21 Mich App 146; 175 NW2d 351 (1970). See also Dudek v Popp, 373 Mich 300; 129 NW2d 393 (1964). Evidence that the conditions may have changed due to lapse of time between the accident and Thomas’s observations and the severe weather conditions prevalent relates to the credibility of the witness rather than the admissibility of his testimony.
As to Dunlap’s testimony, MRE 705 provides that an expert may give opinion testimony without first disclosing the underlying facts for his opinion. On cross-examination, the expert may be required to disclose the underlying facts. Dunlap based his opinion on the observations and tests performed by the investigating officers and upon his own observations and the three sight-distance tests performed on March 6, 1978. He testified concerning the scientific principles he utilized in reaching his
C
Defendant next argues that the trial court erroneously admitted testimony of the tests conducted by Sergeants Thomas and Kenny and by Dunlap because they were not conducted under conditions similar to the conditions at the time of the accident.
The admissibility of test results and experiments performed by experts and nonexperts is a matter within the wide discretion of the trial judge. Hartford Fire Ins Co v Walter Kidde & Co, Inc, 120 Mich App 283; 328 NW2d 29 (1982). Before evidence of such tests can be admitted, a proper foundation must be laid to show that the test or experiment properly duplicates the conditions leading to the lawsuit. Elliott v A J Smith Contracting Co, Inc, 358 Mich 398; 100 NW2d 257 (1960).
On January 16, 1977, Sergeants Thomas and Kenny returned to the accident scene to determine if the hill or rise they observed in the southeast quadrant of the intersection would influence drivers on Maple Grove and Nichol Roads. The officers began at points before the intersection and pro
Dunlap conducted three tests at the accident site on March 6, 1978. He utilized a 1977 Chevrolet pickup truck and a 1970 Javelin to determine sight-distance measurements. Those vehicles were similar to the vehicles driven by Kenneth Jones and Matthew Bye. Distances along both roadways were marked off at 50-foot intervals. The vehicles were then positioned and photographs and measurements were taken, illustrating the points at which the other vehicle was visible across the southeast quadrant at various distances. Dunlap performed a second test utilizing a 3'6" marker. Dunlap testified that this was a standard test condition for establishing sight distances, which was recognized in the Michigan Manual of Uniform Traffic Control Devices. The third test was performed at night to determine at what distance headlights from a vehicle approaching from the opposite corner of the intersection could be observed. The cars were driven slowly towards the intersection and at approximately 200 to 220 feet from the intersection a "glow” could be observed by both drivers.
Defendant claims that none of the tests possessed the requisite degree of similarity necessary as a condition precedent to admissibility. While, as defendant argues, there were differences between the conditions of the vehicles, the weather and the lighting, the tests were not conducted in an attempt to factually recreate each element of the accident. The tests were performed with the objec
D
Defendant finally claims that the "conservation of momentum” theory utilized by Dunlap in arriving at his estimation of the speeds of the vehicles has not been accepted in the scientific community in the field of accident reconstruction and therefore testimony and conclusions based thereon should have been excluded. Dunlap testified that the theory was developed in the 18th century by Isaac Newton and that it was a well-recognized scientific principle. The theory and Dunlap’s knowledge of the type and weight of the vehicles involved in the collision, the paths traveled by the vehicles after impact, and the police reports concerning the point of impact were used to determine the relative speed of the vehicles. Dunlap testified that the Bye vehicle was traveling at approximately 33 to 44 mph and that the Jones vehicle was traveling at approximately 23 to 33 mph. Testimony concerning the relative speed of the vehicles was designed to assist the jury in their determination of whether the sight distance of the intersection was a probable cause of the
As a basic law of physics, testimony on the "conservation of momentum” theory was admissible. See O’Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971), holding admissible similar testimony concerning the principles of inertia and forces of collision. The range of speeds does not conclusively establish that Dunlap’s tests were unreliable or unscientific. Without eyewitnesses or knowledgeable survivors, the estimation of the speed of a traveling vehicle must be determined by resort to scientific principles. Those variables were proper subjects of cross-examination and the variation of the speed estimates was brought to the jury’s attention. The testimony was properly admitted and defendant’s arguments are related to the weight and credibility of the testimony and not to the admissibility.
Ill
Was the trial court’s determination of the LEGAL STATUS OF MAPLE GROVE ROAD IN ERROR?
Defendant’s claim on this issue, like Gaul, is divided into three parts. First, defendant contends the trial court erred in making the determination that Maple Grove Road was a "primary” road. Contrary to defendant’s claim, the record shows that the trial judge did not make the designation. The uncontroverted testimony at trial, by both plaintiff and defense witnesses, indicated that Maple Grove Road was certified and designated as a primary road in 1973. See MCL 247.652; MSA 9.1097(2). At the conclusion of the separate record testimony of Frederick Elwood, the trial judge stated: "There doesn’t seem to be any question but what [sic] that in 1973 the State certified Maple
Second, defendant contends that the trial judge erred when he allowed the jury to decide whether a change in a 1976 State Highway Department policy directive should be applied retroactively. According to defendant, the question should have been decided by the court. Because of a conflict in the testimony, we find that the trial court properly allowed the jury to decide the issue. Frederick Elwood testified as to the unwritten policy prior to 1976 and the policy change which occurred in 1976 requiring that roads meet primary standards prior to their certification by the state.
At the conclusion of the separate record, the trial judge noted that there was no indication that the 1976 policy change was retroactive as to roads that had previously been certified. The trial judge determined that he could not make a legal determination at that time but would leave the issue to the jury to decide what standards would apply to Maple Grove Road. The trial judge noted that there was a conflict in the testimony but that there was no written policy which would establish that the county had the affirmative duty to upgrade all roads previously certified to primary status by virtue of the 1976 letter. There was a conflict in the testimony on this issue and the trial judge properly left it to the jury’s determination.
Third, it is claimed that the trial judge erred in refusing to give defendant’s proposed jury instruction number 5, that although Maple Grove Road was designated a primary road such designation did not conclusively make it a primary road. De
IV
Did the trial court err by not allowing REFERENCE TO BE MADE TO A PRIOR LAWSUIT BETWEEN THE ESTATE OF MATTHEW Bye AND PLAINTIFF?
Plaintiff moved in limine to prohibit reference to the prior lawsuit and resulting settlement between the Bye estate and plaintiff. Defendant argued then, and now argues on appeal, that reference to the pleadings and settlement were admissible: (1) to lessen defendant’s liability, (2) to illustrate the contributory negligence of Matthew Bye and the negligence of decedent, and (3) to impeach plaintiff by a party admission.
Prior to trial the parties agreed to reduce any damages awarded by the jury by the amount received in the settlement. The principal reason for admitting evidence of prior settlements is to prevent double recovery to the plaintiff. Where, as here, the parties have agreed to deduct the settlement from any ultimate recovery, double recovery is precluded. Silisky v Midland-Ross Corp, 97 Mich App 470; 296 NW2d 576 (1980). Stitt v Mahaney, 403 Mich 711; 272 NW2d 526 (1978), involved the effect of a release of the original tortfeasor on the remaining defendants. The Supreme Court held that the "boiler plate” language of the release was open to differing interpretations and therefore the release was properly submitted to the jury to determine the intent of the parties. In Brewer v
"[T]he policy in Michigan shall be: When there is no genuine dispute regarding either the existence of a release or a settlement between plaintiff and a codefendant or the amount to be deducted, the jury shall not be informed of the existence of a settlement or the amount paid, unless the parties stipulate otherwise.”
Although the Supreme Court affirmed the conclusion reached by this Court, the decision was rendered as a matter of policy and not of law. Here, there is no dispute as to the amount of the settlement or that plaintiff reserved her right to proceed against the present defendant. Trial in the instant case was held May 5-19, 1981. Based on existing case law at that time, the trial judge properly excluded evidence of the settlement for the purpose of mitigating damages.
Was evidence of the settlement admissible for purposes of disclosing possible contributory negligence of Matthew Bye? We think not. No testimony was brought out at trial in reference to any alleged negligence of Bye and defendant made no offer of proof on this issue. At the conference on jury instructions, defense counsel stated: "There is no allegation or there’s nothing been brought up at this trial that would indicate any negligence on the part of Bye.” Defendant may not claim error on appeal when the issue was not preserved at trial by any offer of proof and was not argued at trial. Finally, there is no claim that the prior settlement released this defendant from liability. In this respect, the case is distinguished from Stitt, supra, as that case involved an ambiguous release
Finally, was defendant’s right of cross-examination impermissibly restricted because defendant was unable to impeach plaintiff by the prior pleadings and consent judgment? There is no evidence that defendant made an offer of proof concerning the contents of the pleadings or the consent judgment. When a party claims error in the exclusion of evidence, it is essential that the party seeking its admission make the relevant facts known to the trial court so that it may rule intelligently on its admissibility. Illenden v Illenden, 46 Mich App 710; 208 NW2d 565 (1973). Defendant’s failure to place sufficient facts on the record precludes meaningful appellate review.
Pleadings and prior inconsistent statements may be admissible for impeachment purposes at a later trial. However, defendant has not disclosed the existence of any inconsistency in plaintiff’s testimony and failed to make an offer of proof at trial. Cases cited by defendant may be distinguished in that each permitted impeachment by prior pleadings when the witness had denied sustaining injuries which had been pled in the previous case. See Schwartz v Triff, 2 Mich App 379; 139 NW2d 907 (1966); Selph v Evanoff, 28 Mich App 201; 184 NW2d 282 (1970); Hanik v Wilczynski, 33 Mich App 268; 189 NW2d 815 (1971). Defendant’s failure to make an offer of proof as to any alleged inconsistency precludes meaningful appellate review.
Defendant’s argument that the consent judgment constitutes an admission binding on plaintiff concerning the negligence and liability of Matthew Bye is not persuasive. Parties may enter into a consent judgment for a variety of reasons and, as noted above, consent judgments do not reflect the
V
Did the trial court err by excluding the EVIDENCE OF PLAINTIFF’S SUBSEQUENT CHILDBIRTHS?
Defendant sought to introduce evidence that, following plaintiff’s remarriage, she had given birth to two children. Defendant’s offer of proof was for the purpose of offsetting plaintiff’s claim for lost wages during the two maternity leaves and to minimize the extent of plaintiff’s claimed residual disabilities. The trial court ruled as follows:
"Next, it is argued by defendants that the jury must be told that plaintiff has given birth to these two children, as well as the one with which she was pregnant at the time of the accident, so that this fact may be considered by the jury in determining the nature and extent of her alleged back and pelvic area problems. In weighing these two conflicting considerations, the court believes, as indicated in the court rule, that we must involve ourselves in a weighing process. It is the opinion of this court that even for this purpose, the fact of these two after born children should not be made known to the jury because the prejudice to the plaintiff outweighs the probative value of the evidence. In this connection, counsel should abide by the following rules: 1. The plaintiff shall make no claim or reference in the testimony to injuries sustained in the accident in any way relating to childbearing problems experienced by plaintiff in connection with the birth of the last two children, and likewise the defendant’s*589 counsel shall make no reference thereto. However, as to the birth of the first child born, following the accident, and with which the plaintiff was pregnant at the time of the accident, this may be examined into by any party. Next, the plaintiff shall make no claim for, in inquiry into any time during which the plaintiff was absent from work due to maternity or illness caused by maternity or pregnancy, and neither shall the defendants inquire into such matters.
"Okay. Does anyone have an objection in that regard, if it’s stated to the jury that she was off on a sick leave, that had nothing to do with the injuries resulting in this accident.”
We find this claim to be the most meritorious of the several issues raised on appeal. At first blush, it would appear that if it had known that the injured party had given birth to two healthy children several years later the jury might not have awarded so large a verdict. Nevertheless, though the issue is admittedly close, we decline to reverse.
Plaintiffs medical testimony consisted of a deposition of Dr. Jack Martin, an orthopedic surgeon, and a video deposition of Dr. Edward Nebel, who first saw plaintiff on March 15, 1978, and treated her for left low back pain and numbness and pain in her left leg. Martin testified that plaintiff would continue to have sacroiliac pain for years to come. Nebel performed a laminectomy in April, 1978, and authorized plaintiff to return to work in August, 1978. He next saw plaintiff in February, 1980, when she complained of mild pain in the left leg and back. He prognosticated as follows:
"A. She is borderline between the eight [sic] and twenty percent. Eighty percent of the people have absolutely no symptoms at all. Here she has occasional symptoms in her left buttocks and again this issue is*590 clouded a little bit. Is that truly from her L-4 disc or from the left sacroiliac joint injury. Both of them give you symptoms in the same area, and then I am suspicious of that SI joint giving her some mild backache. She is not having any leg symptoms which are usually from a nerve root compression, or referred pain from lumbar disc.
"Q. With respect to the SI joint, the sacroiliac joint, would you expect that condition, doctor, to stay about the same, get better, get worse?
"A. I think it would stay about the same, experience intermittent symptoms and there is no gross fracture of the joint. There was not a real wide separation.”
Basically, defendant claims that the ability to produce children in itself evidences a lack of severity of injuries previously sustained. But in the absence of some medical testimony to this effect, it does not necessarily follow that this is true. Defendant did not produce a medical expert. In fact, defendant never had the plaintiff examined by a medical doctor. Consequently, defendant never made a conditional offer of proof to link childbirth to a lower degree of injury or pain. While defendant refers to cases holding that subsequent activities of an injured party may be admissible if they have a bearing on the extent of the injuries sustained,
Pursuant to the trial court’s ruling, plaintiff did not claim loss of earnings during the periods of pregnancy. Although her complaint alleged complications of pregnancy, this portion of her claim was dropped prior to trial. A determination by the trial court that the prejudicial effect of evidence
VI
Did the trial court err by denying defendant’s MOTION FOR A NEW TRIAL?
Defendant contends that there was insufficient testimony to sustain the verdict on both the question of defendant’s negligence and on the extent of damages. On the first question the central issue was whether there was a visual obstruction in the southeast quadrant of the intersection which rendered the intersection unsafe for travel. Defendant argues an insufficiency of the evidence on the
On the question of damages, defendant contends that the award to the estate of $700,000
Defendant also claims that the $75,000 award to plaintiff in her individual capacity was excessive and not supported by the evidence. As a result of the accident, plaintiff sustained the following injuries: frost-bitten hands and feet, fractures of her left inferior and superior pubic ramus, separation of the left sacroiliac joint and a fracture of her right collarbone; intermittent pain in her left low back with numbness and tingling in her left leg; a loss of fine sensation in her fingertips; and, following a fall on the ice in February of 1978, which occurred when her left leg gave out, had disc surgery; had to limit herself during her work as a registered nurse due to difficulty in bending and. supporting additional weight; has some difficulty performing usual household chores, such as vacuuming, laundry and dishwashing; and, although offered a full-time supervisory position, was afraid that her back pain would be aggravated by the extra work and did not accept the position.
The nature and extent of plaintiff’s injuries were detailed fully at trial. In personal injury cases, unless the amount awarded "shocks the judicial conscience”, remittitur is inappropriate. Pippen, supra. There is no absolute standard by which juries or courts can measure the amount of damages. Evidence was presented to show plaintiff’s lost wages, pain and suffering and difficulty performing normal tasks of life. No claim was made by plaintiff for the time that she lost from work for her two subsequent maternity leaves. The jury was informed that the plaintiff was off work during those periods of time for an unrelated illness. The verdict was within the range of evidence and does not appear to be an unreasonable amount.
Did the trial court err by instructing the JURY THAT DAMAGES COULD BE AWARDED FOR LOSS OF CONSORTIUM?
Relying heavily on Endykiewicz v State Highway Comm, 102 Mich App 662; 302 NW2d 271 (1981), defendant contends that the trial court erred when it instructed the jury that damages could be awarded for loss of consortium. In answer, plaintiff notes that in Longworth v Dep’t of State Highways, 110 Mich App 771; 315 NW2d 135 (1981), another panel of this Court refused to follow Endykiewicz and allowed damages for loss of consortium. On October 5, 1982, the Supreme Court resolved the conflict by unanimously holding in Endykiewicz on appeal that damages for loss of companionship and society may be recovered. Endykiewicz v State Highway Comm, 414 Mich 377, 384; 324 NW2d 755 (1982). Accordingly, we hold that the trial court did not err on this issue.
VIII
Did THE TRIAL COURT ERR IN DEDUCTING THE PERCENTAGE OF PLAINTIFF’S DECEDENT’S COMPARATIVE NEGLIGENCE FROM THE VERDICT SINCE DEFENDANT’S NEGLIGENCE IS PREMISED UPON THE FAILURE TO PROVIDE A SAFETY DEVICE?
This issue is raised by plaintiff as cross-appellant. Relying on Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), which held that contributory negligence may not be raised as a defense where injury results from a defendant’s failure to provide a safety device, cross-appellant urges that, similarly, comparative negligence may not be raised as a defense where injury results from the failure to provide safety signing. Funk was decided prior to Michigan’s adoption of com
However, we believe this question has been resolved against cross-appellant by Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). In that case the Supreme Court held that comparative negligence was available in a negligence action involving the failure to provide a safety device. Likewise, in Wade v State Highway Comm, 92 Mich App 234; 284 NW2d 522 (1979), lv den 408 Mich 852 (1980), and Hall v Dep’t of State Highways, 109 Mich App 592; 311 NW2d 813 (1981), lv den 413 Mich 942 (1982), panels of this Court refused to extend the Funk analysis to cases involving a breach of the statutory duty to maintain roadways in a reasonably safe condition. In Hall, supra, this Court affirmed the 75% reduction in the damage award attributed to plaintiffs percentage of negligence. In the present case, defendant brought out testimony showing plaintiffs decedent’s familiarity with the intersection in question. Defendant had placed into issue the question of Kenneth Jones’s negligence. The jury returned a special verdict indicating that Kenneth Jones was 15% comparatively negligent. That figure was utilized to reduce the total damage award. Under Hardy, Wade and Hall, supra, the reduction was proper. We affirm.
Affirmed both as to the complaint and cross-complaint. No costs, neither party having prevailed in full.
Wood v Davenport, 127 Cal App 2d 247; 273 P2d 564 (1954); Tucker v Lower, 200 Kan 1; 434 P2d 320 (1967).
The $700,000 was reduced by 15% ($105,000) to reflect the jury finding that the deceased was 15% negligent. The resulting $595,000 was then reduced by $20,000 which was paid in the settlement between Bye’s insurer and plaintiff.
Concurring Opinion
(concurring). I concur in the result only for the reason that I do not believe the trial court erred, as does the majority, relative to Issue #1.
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