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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,
     )                             )    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.


          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.


          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


          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


          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,
                    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


          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
                    A    Yes I do.
                    Q    What's the significance of that
                    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
                    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
          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


          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


          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


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.


          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
2Lynden, 30 P.3d at 612.
3Bierria, 36 P.3d at 656.
5Id. (citations and internal quotations omitted).
6Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002).
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.

11Lynden, 30 P.3d at 612 (internal citations omitted).
12Bierria, 36 P.3d at 656.
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

               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
17959 P.2d 1247, 1250 (Alaska 1998).
18Id. at 1248.
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).