Ashley v. Hall

978 P.2d 1055
CourtWashington Supreme Court
DecidedJune 10, 1999
Docket66578-8
StatusPublished
Cited by23 cases

This text of 978 P.2d 1055 (Ashley v. Hall) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashley v. Hall, 978 P.2d 1055 (Wash. 1999).

Opinion

978 P.2d 1055 (1999)
138 Wash.2d 151

Melinda ASHLEY, individually and as guardian ad litem for Annelies Stranahan, a minor child, Respondent,
v.
Russell C. HALL and Jane Doe Hall, husband and wife, and the marital community composed thereof, Petitioners.

No. 66578-8.

Supreme Court of Washington, En Banc.

Argued January 12, 1999.
Decided June 10, 1999.

Reed, McClure, William Hickman, Marilee C. Erickson, Seattle, for Petitioners.

Herrmann & Associates, Charles J. Herrmann, Spencer D. Freeman, Tacoma, for Respondent.

MADSEN, J.

At issue is whether the trial court erred in admitting a lay witness' opinion that an auto accident involving a child pedestrian was unavoidable, and whether the admission, if error, was harmless where no objection was made to substantially similar testimony from the same witness earlier in the proceeding. The trial court overruled counsel's objection to the second statement and a verdict was rendered in favor of the driver. The Court of Appeals reversed. We conclude that although admission of such lay opinion testimony was an abuse of discretion in this case, because counsel failed to object to or move to strike the witness' first statement, admission of the testimony was harmless error.

FACTS

Melinda Ashley, individually, and as guardian ad litem of Annelies Stranahan, filed a lawsuit against Russell C. Hall for injuries Annelies sustained when she was hit by the vehicle he was driving.

On the afternoon of November 19, 1992, 12-year-old Annelies was on her way home from school when she was struck by Hall's *1056 vehicle. The accident occurred along Old Military Road where a school speed zone of 20 miles per hour was in effect. Prior to the accident, Annelies was talking with a friend along the side of the road. When the conversation ended, Annelies quickly turned and began to run across the road. Hall was driving northbound. Annelies had reached approximately the middle of the road when Hall's vehicle struck her. She sustained injuries to her head, knee and hip.

Patrick Henry, the only eyewitness to the accident, was driving southbound on Old Military Road. At trial, Henry described his observations of the circumstances surrounding the accident, indicating that "I was paying more attention to [the children] than I was to the road...." Verbatim Report of Proceedings (RP) at 68. Henry indicated the location of the accident, including the number of other children present, Annelies' position before the accident and her actions immediately prior to the impact.

In addition, Henry twice testified that the accident was "unavoidable." RP at 89, 95. First, Henry stated that "the accident was pretty much unavoidable once it got started there." RP at 89. Plaintiff's counsel did not object. However, Plaintiff's counsel did object when Henry was asked whether he thought "Mr. Hall, no matter what, was going to hit that girl...." RP at 95. The trial court overruled counsel's objection on grounds that Henry was permitted to give his impressions at the time of the accident. Consequently, Henry again stated his belief that "the accident was unavoidable." Id.

Two officers who investigated the accident scene also testified. Ashley's counsel objected to the first officer's testimony that "there was no way [Mr. Hall] could have avoided her...." The trial court overruled the objection and permitted the testimony based on the officer's experience as an accident investigator. RP at 92. Counsel made no objection to the second officer's testimony that Hall did not have enough time to react.

Accident reconstruction experts for Plaintiff and Defendant also offered their opinions as to whether the accident was unavoidable, but arrived at different conclusions. In determining whether Hall could have avoided the accident, both experts considered a variety of technical factors, including the girl's rate of travel, the vehicle's possible rates of speed, the initial distance between the girl and vehicle, and the reaction time of a driver from the point of observing the young girl crossing. Hall's accident reconstructionist testified that based on the approximate rate and distance Annelies traveled as she crossed the road, and the range of a driver's reaction time before the actual point of impact, Hall had insufficient time to react. Plaintiff's expert testified that a driver in Hall's situation would have been able to avoid the impact had he observed the notices cautioning drivers to be aware of school children crossing the road and traveled at the posted speed limit.

The trial court directed a verdict of contributory negligence against Annelies, and the jury returned a verdict in favor of Hall. The Court of Appeals reversed and remanded for a new trial, holding Henry's lay opinion that the accident was unavoidable was not only inadmissible, but because Henry was the only disinterested eyewitness to the accident, allowing his opinion was prejudicial to the outcome of the trial. Ashley v. Hall, No. 19584-4, 1997 WL 679911 (Wash.Ct.App. Oct.31, 1997) (unpublished opinion).

ANALYSIS

The first issue is whether the trial court abused its discretion in allowing Patrick Henry, a lay witness, to testify that the accident was "unavoidable" and that Hall's speed was not a factor. RP at 93. Whether admission of Henry's lay opinion was proper rests on the considerations of ER 701.

ER 701 provides that if a witness is not an expert:

[T]he witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

ER 701 is a rule of discretion and is intended to emphasize what a witness knows rather than how the witness expresses his or her knowledge. Comment 701, Washington *1057 Court Rules at 131 (1999). The rule assumes a witness will testify to observations but permits the witness to resort to inferences and opinions when such testimony will be helpful to the jury. Washington case law predating the rule has held lay opinion testimony admissible in a variety of cases, including opinions regarding the speed of a car, whether a person was healthy, the value of property, and identification of a person. See, e.g., Clevenger v. Fonseca, 55 Wash.2d 25, 345 P.2d 1098 (1959) (lay opinion regarding vehicle's approximate speed admissible) overruled in part on other grounds by Danley v. Cooper, 62 Wash.2d 179, 381 P.2d 747 (1963); Port of Seattle v. Equitable Capital Group, Inc., 127 Wash.2d 202, 898 P.2d 275 (1995) (lay opinion regarding property's value admissible); State v. Hardy, 76 Wash.App. 188, 884 P.2d 8 (1994) (lay opinion regarding identity of person in surveillance video was admissible). Application of ER 701 will generally yield the same result as in those cases. Comment 701, Washington Court Rules at 131.

In the usual circumstances, a lay witness should only relate observations to the jury and let jurors form their own opinions and conclusions. This is because a lay witness is in no better position to arrive at an opinion or conclusion from the facts known to a witness. See 5A KARL B.

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Cite This Page — Counsel Stack

Bluebook (online)
978 P.2d 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashley-v-hall-wash-1999.