Marks v. Gaskill

546 N.E.2d 1245, 1989 Ind. App. LEXIS 1228, 1989 WL 147530
CourtIndiana Court of Appeals
DecidedDecember 4, 1989
Docket50A03-8809-CV-281
StatusPublished
Cited by13 cases

This text of 546 N.E.2d 1245 (Marks v. Gaskill) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marks v. Gaskill, 546 N.E.2d 1245, 1989 Ind. App. LEXIS 1228, 1989 WL 147530 (Ind. Ct. App. 1989).

Opinions

GARRARD, Presiding Judge.

Gary L. Marks and Mr. Sanitation, Inc. appeal a verdict of the Marshall Circuit Court in favor of Donald E. and Mary Ann Gaskill. Donald Gaskill was awarded $100,000 and Mrs. Gaskill $10,000 for damages arising from a motor vehicle collision on September 10, 1984 along U.S. Highway 20 in Mishawaka, Indiana. Marks and Mr. Sanitation present seven issues on appeal; we will consider only two:

1) Whether it was reversible error for the trial court to allow the investigating officer to testify as an expert that the defendants were at fault.
2) Whether it was error for the trial court to instruct the jury that in calculating damages, it may consider the plaintiffs loss of the enjoyment of life.

We reverse.

Facts

On September 10, 1984, Donald Gaskill was driving a Pontiac automobile west on U.S. Highway 20. At the same time, Marks was driving a Mr. Sanitation garbage truck through a driveway located on the south side of Highway 20. Marks drove his truck onto the highway, intending to turn west, and Gaskill’s car collided with the passenger’s side of the garbage truck at the front wheels. Paramedics removed Gaskill from the car and took him to the hospital. Gaskill suffered injuries to his leg and neck and underwent surgery twice. He continued to experience neck and back pain at the time of trial and to have difficulty walking.

The Gaskills sued Marks and Mr. Sanitation claiming negligence. Marks and Mr. Sanitation asserted contributory negligence as an affirmative defense. The jury returned a verdict for the Gaskills and allowed $100,000 recovery on Donald Gas-kill’s claim and $10,000 on Mrs. Gaskill’s loss of consortium claim.

I.

Expert Testimony on Fault

Marks and Mr. Sanitation contend that the trial court erred in allowing Police Officer Darrell Benjamin to give opinion testimony as to who was at fault. The dialogue on direct examination is as follows:

Q. Corporal Benjamin, you’ve indicated that you’ve had schooling on accidents and fault at accidents, and such, were you able to determine, from talking with the truck driver and from talking with Mr. Gaskill, what had happened in this collision?
* * * * * *
A. Was I able to determine by talking to him?
Q. Yes?
A. Yes.
Q. And, did you take into consideration what you saw there at the collision scene?
A. Yes.
Q. Was what you saw at the collision scene, consistent with what each of the drivers had told you?
A. Yes.
Q. And, now my question is, did you make a conclusion, yes or no, as to who was at fault in this collision?
A. Yes.
Q. Who was at fault?
MR. WALSH: To which we’re going to object, Your Honor, for obvious reasons. This witness has not been qualified to express an opinion in that regard, number one (1). Number two (2) it invades the ultimate province of the jury to decide that?
THE COURT: Response?
MR. ESLINGER: Your Honor, the Courts have been quite lenient in recent years about allowing an expert [1247]*1247witness to testify as to the final conclusion in the case, or the final issue to be reached. And, in addition, we have qualified this witness by showing that he has expertise in this particular area and years and years and years of experience. I think he’s qualified to answer that question and should be allowed to answer it.
THE COURT: Objection overruled. Go ahead and answer the question.
* * * * * *
Q. My question is, who is at fault?
A. I would say the truck.
Q. Why?
MR. WALSH: Your Honor, I’m going to object and I would ask for a continuing objection on the record.
THE COURT: We’ll show your objection. Overruled.
A. The positions of the vehicles.
Q. Well, was there more to your conclusion tha[n] that?
A. Well, the weather, it was awful wet. There was a lot of traffic up there and the position of the vehicles in the roadway, two (2) to four (4) foot over the center line, and where the damage was on the vehicles indicates to me, personally, not to anybody else, that the truck was at fault.

Marks and Mr. Sanitation contend that Officer Benjamin was not qualified or competent to give an opinion on an ultimate issue in the trial, and that Corporal Benjamin’s testimony invaded the province of the jury. The expert witness’s training, education, and experience provide the foundation required to offer his expert opinion. Martin v. Roberts (1984), Ind., 464 N.E.2d 896, 899. The expert is not required to demonstrate specific principles or calculations to qualify to state an opinion. However, his specific knowledge or lack thereof may affect the weight the jury will give his testimony. Id. Darrell Benjamin was clearly qualified to give expert testimony. He had served 19 years on the Mishawaka Police Department, most of which he served in automobile accident investigation. He had taken numerous refresher courses in accident investigation over the years. The trial court did not abuse its discretion in allowing Corporal Benjamin to testify as an expert.

The question remains -whether Corporal Benjamin was qualified to opine »as to who was at fault. When the trial court determines that an expert’s opinion is a legal conclusion, it may exclude such testimony. An expert’s opinion that the defendant was responsible for a defective condition and owed the plaintiff a duty is a legal conclusion. Harman v. C.E. & M., Inc. (1986), Ind.App., 493 N.E.2d 1319, 1321. Moreover, broad form conclusions such as, “A is at fault,” should not be allowed as expert opinions and are inadmissible. Rosenbalm v. Winski (1975), 165 Ind.App. 378, 385, 332 N.E.2d 249, 254. Expert opinion is inappropriate in matters within common knowledge.

Where the question posed to the expert injects as an element necessary to the answer, the issue of whether a party was negligent or exercising reasonable care, the question becomes objectionable because in the eyes of the law, ordinary [persons] are capable of making that assessment based upon their common knowledge and experience.

Id. at 386, 332 N.E.2d at 254. Corporal Benjamin testified that the truck, i.e., Marks, was at fault. The answer necessarily implied that there was no contributory negligence on the part of Gaskill. That testimony should have been excluded.

Harmless error is not ground for reversal. Indiana Rules of Procedure, Trial Rule 61. We find that this error is not harmless.

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Bluebook (online)
546 N.E.2d 1245, 1989 Ind. App. LEXIS 1228, 1989 WL 147530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marks-v-gaskill-indctapp-1989.