You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Getchell v. Lodge (2/28/2003) sp-5668
Getchell v. Lodge (2/28/2003) sp-5668
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.THE
SUPREME COURT OF THE STATE OF ALASKAJOYCE GETCHELL,
) ) Supreme Court No. S-
10458 Appellant, )
) Superior Court No. v. )
3KN-99-663 CI )BARBARA LODGE,
) O P I N I O N )
Appellee. ) [No. 5668 - February 28,
2003]________________________________)Appeal from the
Superior Court of the State of Alaska, Third Judicial
District, Kenai, Harold M. Brown, Judge.Appearances:
Danya R. Crosby and Mark E. Ashburn, Ashburn & Mason,
Anchorage, and Jeffrey D. Jefferson, Nordstrom, Steele,
Nicolette & Jefferson, Kenai, for Appellant. David S.
Carter and Kimberlee A. Colbo, Hughes, Thorsness,
Powell, Huddleston & Bauman, LLC, Anchorage, for
Appellee.Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices. FABE, Chief
Justice.I. INTRODUCTION
When Barbara Lodge saw a moose in her lane of traffic,
she braked and skidded on ice into the oncoming lane of traffic,
causing a collision with Joyce Getchell's car. Getchell sued
Lodge, and the case proceeded to a jury trial. The jury found
that Lodge was not negligent. Getchell appeals the superior
court's denial of her motions for judgment notwithstanding the
verdict (JNOV) and new trial. She also appeals the trial court's
admission of the investigating state trooper's testimony.
Because we conclude that the trial court did not err in denying
Getchell's motions for JNOV or new trial, or in admitting the
trooper's testimony, we affirm.
II. FACTS AND PROCEEDINGS
On the morning of January 16, 1998, Joyce Getchell and
Barbara Lodge drove to work on the Kenai Spur Highway. Getchell
headed south on the highway towards Kenai. Lodge headed north
towards Nikiski. A thin layer of ice covered the unsanded road;
the morning was dark. There was a dispute at trial about what
happened next. However, because we draw all factual inferences
in favor of the non-moving party when reviewing motions for JNOV
and new trial, what follows is Lodge's account.1
Because of the darkness, the icy road conditions, and
the possibility of moose crossing the highway, Lodge was driving
at about forty-five miles per hour, even though the speed limit
was fifty-five. A moose emerged out of the darkness from Lodge's
right and tried to cross the road as Lodge neared Mile 20 of the
highway. Lodge hit her brakes as hard as she could. She
testified that her car skidded immediately and began to rotate in
a counterclockwise direction. Lodge lost control of her car as
it continued to rotate and slide. Ultimately, the car crossed
the center line of the road. The car finished rotating and came
to a stop in the southbound lane. As Getchell headed south
towards Mile 20, driving between forty-five and fifty-five miles
per hour, she saw a car in her lane. Getchell hit the passenger
side of Lodge's car. The impact injured Getchell's ankle,
requiring surgery. State Trooper Harold Leichliter investigated
the accident and completed an accident report based upon his
observations of the scene and witness interviews.
Getchell brought a personal injury negligence action
against Lodge. Before trial, Getchell objected to the
introduction of portions of Trooper Leichliter's videotaped
deposition. Getchell argued that the objectionable portions of
the deposition should be excluded as impermissible opinion
testimony under Alaska Rules of Evidence 701 and 702.
Additionally, she argued that Trooper Leichliter's testimony was
irrelevant and more prejudicial than probative, and therefore
excludable under Alaska Rules of Evidence 402 and 403. The
superior court admitted Trooper Leichliter's testimony over
Getchell's objections.
Superior Court Judge Harold M. Brown conducted a three-
day jury trial in July 2001. Getchell moved for a directed
verdict, which the trial court denied. The jury found Lodge not
negligent. After hearing the verdict, Getchell orally moved for
a judgment in her favor notwithstanding the verdict or,
alternatively, a new trial. The court entered judgment in favor
of Lodge and against Getchell in September 2001, for $17,042.50
in attorney's fees and $5,473.18 in costs, a total of $22,515.68.
Shortly thereafter, Getchell filed a motion for judgment
notwithstanding the verdict and a motion for new trial. Judge
Brown heard arguments on Getchell's motions in November 2001.
Judge Brown denied Getchell's motions.
Getchell appeals Judge Brown's denial of her motions
for JNOV and new trial. She also appeals the trial court's
admission of Trooper Leichliter's testimony.
III. STANDARD OF REVIEW
We will affirm a trial court's denial of a motion for
judgment notwithstanding the verdict unless "the evidence, when
viewed in the light most favorable to the non-moving party, is
such that reasonable persons could not differ in their judgment
of the facts."2
A "refusal to grant a new trial is reviewed under an
abuse of discretion standard"; accordingly, we review the record
"in the light most favorable to the non-moving party."3 We
disturb the trial court's exercise of discretion only "in the
most exceptional circumstances to prevent a miscarriage of
justice."4 "An abuse of discretion exists when evidence to
support the verdict was completely lacking or was so slight and
unconvincing as to make the verdict plainly unreasonable and
unjust."5
We review a trial court's "decision to admit or exclude
evidence for abuse of discretion."6 An abuse of discretion
exists only when we are "left with a definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling."7 We reverse the trial court's
decision to admit or exclude evidence only if we determine that
the trial court abused its discretion and that "the error
affected the substantial rights of a party."8
IV. DISCUSSION
A. The Trial Court Did Not Err in Denying Getchell's
Motions for Judgment Notwithstanding the Verdict and
New Trial.
Getchell argues that the trial court erred in denying
her motions for JNOV and new trial, contending that reasonable
jurors could have only concluded that Lodge acted negligently.
Getchell structures her argument around the tort consequences of
Lodge's alleged violation of two Alaska traffic regulations.9
Getchell contends that because Lodge crossed the center lane of
traffic into Getchell's lane she violated 13 AAC 02.085 and 13
AAC 02.050. Because Lodge violated these traffic regulations,
Getchell argues, the burden of proof shifted to Lodge to show by
a preponderance of the evidence that her conduct was excused. To
prove excuse in the instant case, Getchell asserts that Lodge had
to demonstrate that she exercised reasonable care in two ways:
"first, that she refrained from steering into oncoming traffic,
and second, that she exercised reasonable care in handling her
sliding vehicle." Getchell contends that Lodge steered into
oncoming traffic, took no steps to control her skidding car, and
that therefore "reasonable persons could only have concluded that
Lodge failed to meet her burden of proving excuse by a
preponderance of the evidence."10
Getchell is correct that Lodge can only claim excuse if
she handled her moose-avoidance maneuver and the resulting skid
in a non-negligent manner. However, contrary to Getchell's
argument, there is evidence in the record that Lodge did not
purposefully steer into the oncoming lane and that the skid was
not caused by her negligence. We will affirm a trial court's
denial of a motion for judgment notwithstanding the verdict
"unless the evidence, viewed in the light most favorable to the
non-moving party, is such that reasonable persons could not
differ in their judgment as to the facts."11 A factual dispute
exists here. Similarly, we affirm a trial court's denial of a
motion for a new trial unless the court abused its discretion.12
We will find an abuse of discretion when no evidence supported
the verdict or when the evidence was "so slight and unconvincing
as to make the verdict plainly unreasonable and unjust."13 Ample
evidence supports the verdict in this case.
Both Getchell and Lodge agree that it would have been
negligent to steer into the oncoming lane of traffic on purpose
under the circumstances of this case. However, Lodge testified
that she did not steer into the other lane.
Q But you deny that you attempted to turn,
correct?
A Yes.
Q Okay. And when asked in your deposition
if you swerved to the right or to the
left, you said: I did not turn and I did
not swerve to the right or left, true?
A That's what I said, yes.
Q And you maintain that today?
A Yes, mmm-hmm.
James Stirling, Lodge's accident reconstruction expert, testified
similarly:
Q Mr. Lewis testified that tire marks in
the trooper photos indicate that Ms.
Lodge's vehicle was sideslipping and
rotating as it crossed the center line
in the roadway. Do you agree with that
position?
A Yes I do.
Q What's the significance of that
information?
A The rotation started in her lane.
Q Are you aware of any evidence in this
case that Ms. Lodge intended to steer
into or swerve into the oncoming lane of
traffic?
A No, I'm not.
In addition to the evidence that Lodge did not steer into the
oncoming lane of traffic, Lodge testified that she slammed on her
brakes to avoid a moose in her lane. According to Lodge, her
brakes locked and she skidded into Getchell's lane. Reasonable
jurors could have concluded that the presence of the moose in the
road excused Lodge's skid into the oncoming lane of traffic.
Skidding to avoid a moose is the type of excuse contemplated by
288A of the Restatement (Second) of Torts, adopted by this court
in Ferrell v. Baxter.14 Comment h of this section aptly describes
this situation:
Emergency. As in other cases of negligence
(see 296), the violation of an enactment or
regulation will ordinarily be excused when
the actor is confronted with an emergency
which is not caused by his own misconduct.[15]
It is plausible that the jury concluded that the moose created an
emergency situation for Lodge and that they therefore excused the
unfortunate consequences of her attempt to avoid the moose.
The jury also heard other evidence from which it could
have reasonably concluded that Lodge was not negligent. Lodge
points out that she had very little time to react after she saw
the moose in the road. Lodge's accident reconstruction expert,
James Stirling, expressed his opinion that Lodge had
approximately "three-point-some seconds before" she would have
collided with the moose. According to Stirling, Lodge's
perception of the danger, before she took any evasive action,
would have consumed one-and-a-quarter to one-and-a-half seconds.
Thus, Lodge argues, she had one-and-a-half seconds at most to
slow the car down and correct the slide. Stirling testified that
"[g]iven the surface and how slick it was, and given the speed of
45 miles an hour, [Lodge's attempts to correct her car's
rotation] would have had to have been almost instantaneous to
stop. . . . I would think she would have to perform higher than
the average driver to do it." Based upon this testimony,
reasonable jurors could have concluded that "Lodge was unable
after reasonable care to comply with [13 AAC 02.085 and 13 AAC
02.050]." The trial court did not abuse its discretion in
denying Getchell's motions for JNOV or new trial.16
B. The Trial Court Did Not Err in Admitting Trooper
Leichliter's Testimony.
1. Trooper Leichliter testified as a hybrid
witness.
Trooper Leichliter responded to the accident in this
case and wrote an accident report. Before trial, Getchell
objected to Trooper Leichliter's proposed testimony about
causation and fault. She argued in a motion in limine that
Trooper Leichliter should not be able to offer expert opinions
because Lodge listed him as a fact witness rather than an expert
witness in her witness list. Getchell asserted that because
Trooper Leichliter was a fact witness, his testimony should be
excluded as improper lay opinion evidence under Alaska Rule of
Evidence 701 because, contrary to Rule 701's requirements, he did
not see the accident. Alternatively, Getchell argued that if the
court considered Trooper Leichliter an expert, his testimony
should be barred because it did not satisfy Rule 702's
helpfulness requirement. Although Lodge listed Trooper
Leichliter as a fact witness, rather than an expert, the trial
court apparently considered his testimony to be expert testimony.
Judge Brown permitted Trooper Leichliter to testify regarding
causation based upon his investigation of the accident.
In his testimony, Trooper Leichliter focused on the
accident report that he prepared when he arrived at the accident
scene. He testified that the moose was the only contributing
factor and that no human factors contributed to the accident.
Trooper Leichliter gave the opinion that drivers generally react
to the sight of a moose in the road in front of them by braking,
which could lead to skidding and loss of control in icy road
conditions. He testified that he found no evidence indicating
any improper conduct by Lodge. Lodge's defense attorney used
this testimony in his closing statement as opinion evidence that
Lodge was not negligent in responding as she did to the sighting
of the moose. Trooper Leichliter's testimony incorporated both
his observations as a percipient witness investigating the scene
and his conclusions about causation based on over twenty-two
years as a state trooper investigating accidents. Thus, we find
that the label " expert" or "fact" witness lacks significance in
this situation because Trooper Leichliter provided hybrid
testimony.
We discussed the concept of hybrid witnesses in Miller
v. Phillips.17 In Miller, parents of an injured newborn sued
their midwife for negligence.18 The jury found for the midwife.
On appeal, the parents argued that the trial court erred in
allowing the midwife's supervising physician to testify as an
expert because the midwife called him as a fact witness.19 The
trial court allowed the doctor to testify as a hybrid witness; he
could not testify "in general terms about the appropriate
standard of care," but he could testify to "his expert
observations [and] his own opinions as to what he observed," as
well as his "expert opinions based on his review of hospital
records."20 We held that the physician could express expert
opinions formed as a supervisory participant, reasoning that
"[w]hen physicians are called to testify about matters pertaining
to the treatment of their patients, the distinction between an
expert witness and a fact witness inevitably becomes blurred."21
Like the treating physician in Miller, Trooper Leichliter, the
investigating officer, was "intimately involved in the underlying
facts giving rise to the litigation and . . . would reasonably be
expected to form an opinion through that involvement."22 Thus,
despite Lodge's choice to list Trooper Leichliter as a fact
witness, it was not error to permit him to base his opinions on
his expertise. Moreover, Getchell was fully aware of the content
of Trooper Leichliter's proposed testimony. She was able to
depose Trooper Leichliter and thus suffered no prejudice from
Lodge's decision to list him as a fact witness.
2. The trial court did not err in admitting
Trooper Leichliter's testimony under Rule 702.
Getchell also argues that the trial court abused its
discretion by admitting Trooper Leichliter's testimony as an
expert witness because his testimony did not comply with Alaska
Rule of Evidence 702. She contends primarily that Trooper
Leichliter's testimony did not help the jury because the jury was
at least as capable as Trooper Leichliter of determining whether
Lodge acted reasonably.
Alaska Rule of Evidence 702(a) allows a witness to give
opinion testimony if the witness is qualified "by knowledge,
skill, experience, training or education," and if "scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue."23 To be admissible, then, expert opinion testimony must
be helpful to the jury. This helpfulness standard requires
experts to "stop short of stating their own conclusions" on
points that the jury is at least equally capable of determining.24
In Spenard Action Committee, we relied on this rationale in
holding that the superior court had erred in permitting police
officers to express their opinion that a massage parlor was
operating as a house of prostitution. On the other hand, in
cases such as Adkins v. Lester and State v. Phillips, we have
approved of the admission of police officers' opinions as to the
cause of particular traffic accidents that they have
investigated.25
Trooper Leichliter's testimony satisfies Rule 702's
requirements. First, his knowledge and experience qualified him
as an expert. He served as a state trooper in Kenai for twenty
years, and, as Lodge points out, Trooper Leichliter "routinely
determined whether there were any human factors contributing to
[accidents involving moose], such as speeding, or whether the
accident was simply the result of a moose interfering with motor
vehicle traffic." Second, Trooper Leichliter's testimony was at
least of arguable assistance to the jury. His implied opinion
that Lodge had not been negligent was not different in kind than
the police testimony permitted in Adkins v. Lester and State v.
Phillips. Finally, it is analogous to the type of testimony
given by the accident reconstruction experts who testified at the
trial without objection. The trial court did not abuse its
discretion in admitting Trooper Leichliter's testimony under Rule
702.
3. The trial court did not err in declining
to exclude Trooper Leichliter's testimony under
Alaska Rule of Evidence 403.
Getchell finally argues that the trial court should
have barred Leichliter's testimony under Alaska Rule of Evidence
403 because it was more prejudicial than probative.
Alaska Rule of Evidence 403 provides that the trial
court may exclude relevant evidence "if its probative value is
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence."26 The commentary to the rule explains that
"[s]ituations in this area call for balancing the probative value
of and need for the evidence against the harm likely to result
from its admission. . . . [T]here is a slight presumption in
favor of admitting relevant evidence. . . . [T]o overcome this
minimal presumption, the prejudicial effect must be demonstrably
greater than the probative value of the evidence."27
It is true that Trooper Leichliter's testimony was
prejudicial to Getchell in the sense that it bolstered Lodge's
argument that her conduct was excused because she skidded to
avoid a moose. However, "undue prejudice connotes not merely
evidence that is harmful to the other party, but evidence that
will result in a decision being reached by the trier of facts on
an improper basis."28
We recognize that there is a danger that a police
investigator's conclusion will be given undue weight by a jury.29
In any particular case this may be a real danger. The officer
may be focusing on whether the evidence will support a quasi-
criminal traffic citation that must be proven beyond a reasonable
doubt, rather than whether there is civil negligence that need
only be proven by a preponderance of the evidence. Nonetheless,
this possibility may be ignored by a jury, and because of the
neutrality and prestige of an investigating officer, the
officer's testimony may be given decisive weight. There is case
law in other jurisdictions holding that a police officer's
decision whether to issue a traffic citation is inadmissible on
the question of negligence.30 These authorities are based in part
on the rationale that such testimony amounts to an opinion on an
ultimate issue that is for the trier of fact to decide, an
exclusionary rationale that our rules reject,31 and in part on the
undue weight concerns. The answer we have accepted in response
to these legitimate concerns is not a rule of blanket exclusion.
Instead, vigorous advocacy including cross-examination is
expected to serve as a safeguard against undue weight being given
to police testimony.32 A second safeguard is the discretionary
power of the trial court under Rule 403 to exclude testimony
when, on balance, its probative force is outweighed by the danger
of unfair prejudice.33 In the present case the record does not
suffice to persuade us that the trial court abused its discretion
in striking the balance mandated by Evidence Rule 403 in favor of
the admission of Trooper Leichliter's implied opinion testimony.
V. CONCLUSION
Because we find that there was evidence from which
reasonable jurors could have differed in their judgment of the
facts as to whether Lodge acted negligently, we AFFIRM the trial
court's denial of Getchell's motions for JNOV and new trial.
Because the trial court did not abuse its discretion in admitting
Trooper Leichliter's testimony, we AFFIRM the decision to admit
the testimony.
_______________________________
1See Bierria v. Dickinson Mfg. Co., Ltd., 36 P.3d 654, 656
(Alaska 2001); Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska
2001).
2Lynden, 30 P.3d at 612.
3Bierria, 36 P.3d at 656.
4Id.
5Id. (citations and internal quotations omitted).
6Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002).
7Id.
8Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).
9A violation of a traffic regulation constitutes negligence per
se in Alaska. Ferrell v. Baxter, 484 P.2d 250, 259 (Alaska
1971). This state's traffic laws prescribe the standard of care
owed by a reasonable driver "to the general public who may be
injured if such standard is not met." Id. A plaintiff who
establishes that a defendant violated a traffic regulation makes
a prima facie case that the defendant acted negligently. Id.
The defendant then bears the burden "to prove affirmatively that
his violation was excused." Id. at 266. "It is fair to put the
burden of proving excuse upon the one who has violated the law in
the first place." Id. "Excuse" is a fluid concept. Id. at 264.
We have adopted the Restatement (Second) of Torts's position on
excused violations of traffic regulations. Id. at 263-64.
Section 288(A) provides:
(1) An excused violation of a legislative
enactment or an administrative regulation is
not negligence.
(2) Unless the enactment or regulation is
construed not to permit such excuse, its
violation is excused when
(a) the violation is reasonable because
of the actor's incapacity;
(b) he neither knows nor should know of
the occasion for compliance;
(c) he is unable after reasonable
diligence or care to comply;
(d) he is confronted by an emergency
not due to his own misconduct;
(e) compliance would involve a greater
risk of harm to the actor or to others.
Restatement (Second) of Torts 288(A) (1965).
10Getchell quotes language from Justice Boochever's dissent in
Wilson v. Sibert, 535 P.2d 1034, 1040 (Alaska 1975), to support
her position that "continuous, hard braking during a skid is an
unquestionable example of negligent conduct."
A driver may be presented with an emergency
such as skidding on some ice which could not
reasonably have been anticipated. Despite
the emergency, if he forcefully and
continuously applies his brakes, he will be
found to have driven negligently. Even
though he acted more or less instinctively,
such application of brakes is not a
reasonable choice.
Id. at 1041. Getchell's reliance on this portion of Wilson is
misplaced for two reasons. First, it is a dissent and thus has
no precedential value. Second, Justice Boochever recognized that
when a driver proceeding on a highway is
confronted by a person, animal or other
vehicle suddenly appearing in the path of his
vehicle . . . [the driver] must make an
instantaneous decision whether to proceed
into the obstacle or to swerve to either
side. Either decision may be reasonable
under the circumstances, even though if more
time were available, the driver could better
determine which decision to make.
Id.
11Lynden, 30 P.3d at 612 (internal citations omitted).
12Bierria, 36 P.3d at 656.
13Id.
14484 P.2d at 263-64; see supra note 9.
15Restatement (Second) of Torts 288A cmt. h (1965).
16See Nat'l Bank of Alaska v. McHugh, 416 P.2d 239, 242 (Alaska
1966):
In holding that the court did not err in
refusing to grant appellant's motion for
judgment, we applied a test of
reasonableness. We held that whether
appellee exercised reasonable care for his
own safety was a question on which there was
room for diversity of opinion among
reasonable men. Logically, a decision of
that question reached by reasonable men would
be a reasonable decision. It would be
inconsistent, then, for us to hold that such
a decision reached by the jury was contrary
to the weight of the evidence or was not
supported by legally sufficient evidence, for
this would be equivalent to holding that
under the evidence the jury could not
reasonably have decided as they did on a
question upon which reasonable minds could
differ.
17959 P.2d 1247, 1250 (Alaska 1998).
18Id. at 1248.
19Id.
20Id. at 1250.
21Id. at 1248, 1250.
22Wakeford v. Rodehouse Rests. of Missouri, 610 N.E.2d 77, 80
(Ill. 1993).
23Alaska R. Evid. 702.
24Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdivision,
902 P.2d 766, 780 (Alaska 1995).
25Adkins v. Lester, 530 P.2d 11, 18 (Alaska 1974); State v.
Phillips, 470 P.2d 266, 270-71 (Alaska 1970).
26Alaska R. Evid. 403.
27Alaska R. Evid. 403 commentary.
28Liimatta v. Vest, 45 P.3d 310, 315 (Alaska 2002) (quoting Hiller
v. Kawasaki Motors Corp., 671 P.2d 369, 373 (Alaska 1983)).
29See Adkins v. Lester, 530 P.2d 11, 17 (Alaska 1974).
30See Ferreira v. General Motors Corp., 657 P.2d 1066, 1069 (Haw.
App. 1983); Ingrum v. Tucson Yellow Cab Co., 642 P.2d 868, 872
(Ariz. App. 1982), and authorities cited therein.
31Evidence Rule 704 provides: "Testimony in the form of an
opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier
of fact." See Wilson v. State, 669 P.2d 1292 (Alaska 1983).
32Id.
33Id.
