Bennett v. Graham

714 A.2d 393, 552 Pa. 205, 1998 Pa. LEXIS 1002
CourtSupreme Court of Pennsylvania
DecidedMay 19, 1998
Docket13 E.D. Appeal Docket 1997
StatusPublished
Cited by16 cases

This text of 714 A.2d 393 (Bennett v. Graham) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. Graham, 714 A.2d 393, 552 Pa. 205, 1998 Pa. LEXIS 1002 (Pa. 1998).

Opinion

OPINION OF THE COURT

FLAHERTY, Chief Justice.

This is an appeal by allowance from an order of the Superi- or Court which affirmed an order of the Court of Common Pleas of Philadelphia County in a negligence case brought by appellants.

In July, 1986, a vehicle operated by appellee Graham collided with a vehicle operated by appellant Bennett in which appellant Mebane was a passenger. The accident occurred at an intersection regulated by traffic lights. There were no other witnesses to the accident and the occupants of each car claimed that the other vehicle ran a red light. The occupants of both vehicles suffered personal injuries to varying degrees and were treated at a local hospital.

Philadelphia police officer Charles Loughery responded to the radio call reporting the accident. After observing the accident scene, Officer Loughery proceeded to the hospital where he interviewed the parties and completed his accident report.

Appellants filed a complaint against Graham and the Federation of Jewish Agencies alleging that Graham’s negligent operation of her vehicle caused the accident. 1 Appellees filed a cross-complaint against Bennett and his wife Kimberly, the owner of the vehicle driven by Bennett, alleging that Bennett’s negligent operation of a motor vehicle caused the accident and *208 resulted in payment of uninsured motorist benefits by Hartford Insurance Company to Graham and the agency. 2

An arbitration panel determined that since appellants had failed to insure their vehicle, Hartford was entitled to reimbursement for benefits paid to Graham and the agency. Appellants appealed this determination to common pleas court where a jury trial was held before Judge Rosenwald.

During Officer Loughery’s pre-trial deposition, counsel agreed that all objections would be reserved for trial. Officer Loughery was questioned as to his professional experience and training; he responded that he had received instruction in accident investigation during his police academy training and that over the course of a twenty year career he had personally responded to a “few hundred” accident scenes. Deposition of C. Loughery at 5. He was neither offered nor accepted as an expert witness during this deposition or at trial. Appellants’ counsel, again asserting that objections were reserved for trial, asked for Loughery’s opinion as to who ran the red light. Loughery answered, “If I can recall correctly to be honest with you ... I think it looked like [Bennett’s vehicle] went through the red light.” Deposition of C. Loughery at 17. Loughery subsequently expressed additional reservations as to the accuracy of his recall and admitted that he believed that his opinion was based upon his conversations with the vehicles’ occupants and the vehicles’ locations in the intersection. Deposition of C. Loughery at 18.

At trial, the only independent evidence regarding the cause of the accident was Loughery’s deposition testimony that, to the best of his recollection, it was his opinion that the Bennett car was the cause of the accident. Portions of Loughery’s deposition were read into the record because he had been subpoenaed for the third day of trial, but due to the celerity with which the proceedings progressed the trial lasted only two days and Loughery was deemed unavailable. Appellants’ *209 counsel objected to the admission of the portion containing Loughery’s belief as to who caused the accident and was overruled. Appellants’ counsel then moved for a mistrial. The motion was denied.

The jury determined that Bennett was one hundred percent negligent in causing the accident, finding for appellees on both the complaint and cross-complaint and awarding $5500.00 to Graham and $5883.00 to the agency. Appellants filed post-trial motions for judgment notwithstanding the verdict or, alternatively, a new trial. After oral argument, both motions were denied. The Superior Court adopted the trial court’s opinion and affirmed the judgment denying appellants’ motion for reargument. We granted allocatur to determine whether the trial court committed reversible error by admitting into evidence the opinion of a police officer, not qualified as an expert, elicited during a deposition when the officer did not personally witness the accident and was deemed unavailable for trial.

We first note that this court has held that a police officer who does not personally witness an accident is not competent to testify as to the cause of the accident because “the opinion expressed [would be] grossly speculative and an invasion of the jury’s exclusive prerogative.” Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657, 658 (1964). In McKee by McKee v. Evans, 380 Pa.Super. 120, 551 A.2d 260 (1989), the superior court carved out an exception to this rule when the officer has been qualified as an expert.

Whether or not a witness may be permitted to testify as an expert is a decision that rests within the sound discretion of the trial court. Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997) (citing Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525 (1995)). Such decisions will not be disturbed on appeal in the absence of an abuse of the trial court’s discretion. Id. 690 A.2d at 185. In order to qualify as an expert in a given field, a witness must possess, at a minimum, “more expertise than is within the ordinary range of training, knowledge, intelligence, or experience.” Id. The *210 test is “whether the witness has a reasonable pretension to specialized knowledge on the subject matter in question.” Id.

In the case of police officers, basic police training and experience per se has been deemed insufficient to demonstrate such specialized knowledge. Reed v. Hutchinson, 331 Pa.Super. 404, 480 A.2d 1096 (1984). Even so, as a discretionary matter, if the proper foundation had been laid, and Officer Loughery had been properly qualified and offered as an expert, the trial court could have admitted his testimony as evidence if, after due consideration, it had determined that Officer Loughery’s experience satisfied the standard stated above. In this case, nothing indicates that this happened. Officer Loughery was never present at the trial and there is no indication that any attempt was made to lay a foundation which would have enabled appellees’ counsel to offer him as an expert; indeed, he was never so offered. Therefore, the trial court never considered whether or not he possessed sufficient specialized knowledge to qualify as an expert witness, instead relying on the fact that the objectionable testimony was elicited by appellants’ own counsel. 3

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Bluebook (online)
714 A.2d 393, 552 Pa. 205, 1998 Pa. LEXIS 1002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-graham-pa-1998.