Breeden v. Valencia, Inc.

557 So. 2d 302, 1990 La. App. LEXIS 18, 1990 WL 2383
CourtLouisiana Court of Appeal
DecidedJanuary 16, 1990
Docket88-CA-1655
StatusPublished
Cited by7 cases

This text of 557 So. 2d 302 (Breeden v. Valencia, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breeden v. Valencia, Inc., 557 So. 2d 302, 1990 La. App. LEXIS 18, 1990 WL 2383 (La. Ct. App. 1990).

Opinion

557 So.2d 302 (1990)

Patrick D. BREEDEN, et al.
v.
VALENCIA, INC., et al.

No. 88-CA-1655.

Court of Appeal of Louisiana, Fourth Circuit.

January 16, 1990.
Writ Denied March 30, 1990.

*303 Edmond J. Harris Heisler & Wysocki New Orleans, for appellants.

Robert A. Vosbein, Lynn M. Luker, and Edwin C. Laizer, New Orleans, for defendants/appellees, Michael Fagan and Compass Ins. Co.

Owen Neff and Michael M. Meunier, Sessions, Fishman, Boisfontaine, Nathan, Winn, Butler & Barkley, New Orleans, for defendants-appellees, Valencia, Inc. and U.S. Fire Ins. Co.

Francis G. Weller and Nancy J. Marshall, Deutsch, Kerrigan & Stiles, for defendant-appellee, Kawasaki Motors Corp., U.S.A.

Before BARRY, WARD and WILLIAMS, JJ.

WILLIAMS, Judge.

Plaintiff in this case appeals the judgment of the trial court in favor of defendants Michael Fagan, Valencia, Inc., Kawasaki Motor Corporation, and their insurers. In her specifications of error, plaintiff alleges that the trial court erred 1) in limiting the expert testimony of plaintiff's witnesses, Dr. William VanBuskirk and Dr. Judson King; 2) in granting motions for involuntary dismissal in favor of defendants Fagan and Valencia; and 3) in ruling for defendant Kawasaki. Our review of the testimony shows that the trial court did not abuse its discretion in limiting the expert testimony of plaintiff's witnesses, Drs. VanBuskirk and King. Further, because we find that the plaintiff failed to show a right to relief against Fagan and Valencia under the facts shown and the law applicable to this case, LSA-C.C.P. art. 1672, we hold that the trial court properly granted these defendants' motion for an involuntary dismissal. Finally, after reviewing the testimony and evidence, we hold that the trial court did not err in rendering judgment in favor of defendant Kawasaki.

This suit was originally filed by Patrick D. and Margaret C. Breeden against defendants and their insurers for injuries sustained by plaintiffs' minor daughter, Margaret G. (Margee) Breeden.[1]

On April 30, 1983, Margee Breeden was injured when the jet ski upon which she was riding struck three cypress trees located on or near the bank of the Pearl River locks in Slidell, Louisiana. The accident occurred while Margee was participating in a camp program sponsored by defendant Valencia. Defendant Fagan was a counselor in the course and scope of his employment with Valencia at the time of the accident. Fagan supervised the eighth grade program and instructed the campers on the use and operation of the jet skis. The particular ski upon which Margee was riding at the time of the accident was owned by Fagan, rented to Valencia, and manufactured by Kawasaki.

The jet ski at issue is propelled by thrust which is created when the throttle is applied and water is jetted through an opening at the bottom rear of the ski. The ski *304 is steered with the use of handle bars which resemble those of a bicycle. The ski does not have a rudder. Rather, when the handle bars are turned, a nozzle or thrust diverter turns the direction of the ski. Thus, the skier has no directional control of the ski in the absence of thrust.

In their petition, plaintiffs alleged that the accident was caused, inter alia, by defendant Fagan's negligent instruction to Margee, a novice rider, concerning the steering operation of the ski, and that Valencia was liable under the theory of respondeat superior for the negligence of its employee, Fagan. Plaintiffs also alleged that Fagan and Valencia were strictly liable for hidden steering characteristics in the ski which presented an unreasonable risk of harm and caused Margee's damages. Finally, plaintiffs alleged negligence and strict liability claims against Kawasaki, specifically, that the ski was defective in design and/or warning to prospective users.

At the close of plaintiff's case, all defendants moved for an involuntary dismissal in accordance with LSA-C.C.P. art. 1672. The trial court granted the motion as to defendants Fagan and Valencia, as plaintiff failed to show any right to relief under the facts presented. The motion was denied as to defendant Kawasaki. After completion of the trial, the court ruled in favor of the remaining defendants. Plaintiff filed this appeal.

Expert Testimony

We first address plaintiff's fourth and fifth assignments of error, that the trial court erred in limiting the expert testimony of plaintiff's witnesses, Drs. William Van-Buskirk and Judson King. These assignments are without merit.

The purpose of an expert is to give an opinion based upon his professional qualifications and experience, and the trial court may properly exclude the testimony of any witness as an expert where that person is unable to demonstrate sufficient training or experience in the field for which he has sought to qualify as an expert. Hunnicutt v. Kent, 434 So.2d 91, 94 (La.App. 5th Cir.1982), writ den. 435 So.2d 442 (La. 1983). The qualification of a witness as an expert is within the sound discretion of the trial court, and that decision may not be reversed unless clearly wrong. Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La. App. 4th Cir.1979); Frank L. Beier Radio, Inc. v. Brown, 453 So.2d 656 (La.App. 5th Cir.1984), writ den. 458 So.2d 121 (La. 1984).

Further, as stated in Succession of Armshaw v. Succession of Marbury, 428 So.2d 1180 (La.App. 5th Cir.1983), "it is also largely within the discretion of the trial judge to determine the competency of expert witnesses to testify to specialized areas on inquiry not necessarily within his general competency to give an opinion as an expert, or at least not shown to be so by the facts of the record.... (T)he court must have some discretion to limit the witness's testimony as an expert to the actual field of his expertise and as applicable to the facts of the particular litigation, then before it...." Id. at 1182, quoting Carvell v. Winn, 154 So.2d 788, 791 (La.App. 3d Cir.1963).

The court in the instant case accepted Dr. VanBuskirk as an expert in the field of mechanical engineering and biomedical engineering. However, the court did not allow Dr. VanBuskirk to give his opinion[2] as to 1) the prudency of allowing Margee to ride the ski on the day and at the place of the accident, 2) the adequacy of the instructions given by Fagan, or 3) the operation of the jet ski.

The testimony of Dr. VanBuskirk established that the first time he had ever examined a jet ski was just prior to trial at a boat show. He had never ridden a jet ski or examined the interior design of a jet ski. While he had visited the site of the accident, he did not observe the particular trees which Margee hit and did not examine the actual ski Margee was riding on the day of the accident. These facts do not show that the specialized areas on which plaintiff sought Dr. VanBuskirk's expert testimony were within his general competency *305 as an expert in mechanical engineering or biomedical engineering. See Succession of Armshaw v. Succession of Marbury, supra. We note also that the qualification of Dr. VanBuskirk as an expert in mechanical engineering did not necessarily render him competent to testify as an expert on the particular mechanism of a jet ski. Hunnicutt v. Kent, 434 So.2d 91 (La. App. 5th Cir.1982); Poland v. Beaird-Poulan, 483 F.Supp. 1256 (W.D.La.1980). The testimony of Dr. VanBuskirk indicated that he had not had ample opportunity to practically apply his expertise to the mechanism at issue. See

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Bluebook (online)
557 So. 2d 302, 1990 La. App. LEXIS 18, 1990 WL 2383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breeden-v-valencia-inc-lactapp-1990.