Coppedge v. Missouri Highway & Transportation Commission

809 S.W.2d 164, 1991 Mo. App. LEXIS 643, 1991 WL 72454
CourtMissouri Court of Appeals
DecidedMay 7, 1991
DocketNo. 57498
StatusPublished
Cited by4 cases

This text of 809 S.W.2d 164 (Coppedge v. Missouri Highway & Transportation Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coppedge v. Missouri Highway & Transportation Commission, 809 S.W.2d 164, 1991 Mo. App. LEXIS 643, 1991 WL 72454 (Mo. Ct. App. 1991).

Opinion

GARY M. GAERTNER, Presiding Judge.

Clara Beth Coppedge, appellant, appeals from a jury verdict exonerating the respondent, Missouri Highway and Transportation Commission, from liability in an automobile collision. Appellant’s sole point of error concerns the trial court’s sustaining many of respondent’s objections to hypothetical questions appellant asked of the expert witness. We affirm the judgment of the trial court.

The evidence at trial revealed that on December 11, 1985, appellant was driving her car in the westbound lane of Highway 50, just east of Gerald, Missouri. Raymond Spinner, who was travelling eastbound on Highway 50 at the same time as appellant, lost control of his car when it hit a patch of ice on the highway. The two cars collided and appellant sustained serious injuries to her face, arms and legs.

Appellant brought suit in the Circuit Court of St. Louis City against Mr. Spinner, his wife (the owner of the car),1 Paul and Kathleen Hinson (owners of the property adjacent to the accident) and the respondent. Appellant’s claim, for our purposes, was that the drainage ditch on the eastbound side of the highway was improperly maintained and allowed water to cover a portion of the highway. The Hinsons [166]*166were granted a directed verdict at the close of appellant’s evidence and the jury found in favor of respondent. The jury assessed appellant’s damages at $200,000.00. Appellant appeals from the jury’s verdict in favor of the respondent.

Appellant asked the expert witness numerous hypothetical questions and respondent objected to nearly each one of them. Appellant, in her statement of facts, grouped into six categories the hypothetical questions to which she claims the trial court erroneously sustained respondent’s objections. Therefore, we will review appellant’s arguments in the context of a series or group of trial court actions, as appellant has briefed them.

Appellant’s allegation of negligence against respondent was that the respondent breached its duty to properly maintain the drainage ditch which ran adjacent to the eastbound portion of Highway 50. Appellant alleged that the ditch filled with water west of a driveway because the pipe which was to transport water underneath the driveway was blocked. This blockage caused the water to accumulate in the ditch and eventually to spill out onto and across the highway. Appellant alleged that the water had frozen by the time Mr. Spinner’s car reached that portion of the highway, causing Mr. Spinner to lose control of his car and collide with appellant’s car.

Appellant, at trial, established that there had been similar accumulations of water and ice at this location prior to the day of the accident. There was testimony that water had accumulated on the highway, just to the west of the accident earlier during the day of the accident. It was not clear from the testimony whether this water was the result of rain or from melting snow.

Two police officers who arrived on the scene of the accident testified that there was ice on the highway where Mr. Spinner’s automobile skidded before colliding with appellant. One of the officers testified that he encountered fifteen to twenty different patches of ice as he was driving westbound on Highway 50 on his way to the scene of the accident. No one, however, testified that the drainage ditch was filled with water or had flooded onto the highway.

With this background, appellant presented the testimony of a Mr. Dabler, a civil engineer who testified regarding the construction and maintenance of highway drainage systems. The court sustained a number of respondent’s objections to hypothetical and appellant, on appeal, challenges the court’s actions regarding four sets of hypotheticals.2 The first set contained the following hypothetical:

Q (by Mr. Holloran): All right. I want you to assume again what I’ve asked you to assume before, Mr. Dabler, and that is water after rain, there’s no other — is [at] no other area on Highway 50 except this area near this driveway and that water would come on to the roadway from the right of way as you’ve indicated where it would have to come from and it would come on the roadway near gravel drive A,3 fan out across and ultimately flow into the north side or off the north side of the roadway. If that condition existed on numerous occasions at least from the late 1970’s up until 1985, in your opinion, was this right of way being properly maintained if that condition was permitted to occur?

The court sustained respondent’s objection to the hypothetical because of insufficient evidence and because the court found that the answer did not require an expert opinion. The court also stated that the question improperly called upon the expert to render his conclusion of an issue to be decided in the case.

We note that if the subject matter of the hypothetical is one of every day experience, where the jurors are competent [167]*167to decide the issues, then opinion testimony is properly rejected. Wessar v. John Chezik Motors, Inc., 623 S.W.2d 599, 602 (Mo.App., W.D.1981). Yet, if the subject matter of the hypothetical is one with which the jurors would not likely be conversant and where the expert’s opinion would be of value to them, then it is no valid objection that the opinion is upon the ultimate jury issue (or is conclusory) or that it invades the province of the jury. Id. The trial court is afforded wide latitude in determining whether the proffered testimony is a proper subject for expert testimony and this discretion is rarely overturned on appeal. Id.

In this regard, the court stated that the jury was capable of rendering an opinion as to whether there was a failure to maintain the ditch which led to appellant’s injuries. The court also noted that the issue of maintenance of the ditch adjacent to the highway was not unclear to the jury. We do not find the court’s reasoning to be beyond its discretion.

Moreover, an expert’s opinion must be based either upon facts within the expert’s personal knowledge and observations or upon facts supported by competent evidence. Jackson v. H.D. Lee Co., Inc., 772 S.W.2d 742, 748 (Mo.App., S.D.1989). The hypothetical, in our case, asked the expert, assuming that water had entered the highway from near the driveway in the past, whether this meant that the right of way was being properly maintained. This leap of logic was not supported by any facts, either in evidence or within the knowledge and observations of Mr. Dabler. The hypothetical sought to establish that, since there was water on the highway, improper maintenance must have been the cause. The court properly determined that the hypothetical did not provide a sufficient factual basis for Mr. Dabler’s opinion.

Representative of the next set of hypotheticals appellant asserts were proper, is the following question:

Q: All right. I want to ask you to assume some facts to be true. I want you to assume that on that day and that night, there was no ice in the City of

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Bluebook (online)
809 S.W.2d 164, 1991 Mo. App. LEXIS 643, 1991 WL 72454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coppedge-v-missouri-highway-transportation-commission-moctapp-1991.