Scoggins v. Southern Farmers' Ass'n

Steele Hays, Justice. This personal injury case arises from a three-way motor vehicle collision. Under icy weather conditions, a Coca-Cola Bottling Company truck going north collided with a southbound automobile driven by Gary Scoggins, sending the Coca-Cola truck into a spin and the Scoggins vehicle onto the right shoulder. The Scoggins vehicle was followed by a Southern Farmers’ Association truck driven by Larry Latimer.1 In attempting to avoid the jackknifing Coca-Cola truck, Latimer veered to the right where he saw Scoggins in his path. He steered to the left to avoid Scoggins but struck the rear of the Coca-Cola truck and collided with the Scoggins vehicle, rendering Gary Scoggins a paraplegic. Gary and Jerriah Scoggins sued Coca-Cola, Southern Farmers’ Association and Larry Latimer. Just prior to trial, a settlement between Coca-Cola and the Scogginses released Coca-Cola from the litigation and the trial proceeded, resulting in a verdict for the defendants. On appeal, the Scogginses charge the trial court with two errors: one, in permitting the defendant Latimer to testify as to a safe following distance but refusing to permit the driver of the Coca-Cola truck (Donald Houston) to testify to the same matter and, two, in submitting AMI Civ. 3d 614 (sudden emergency) to the jury over plaintiffs’ objection. We hold that AMI Civ. 3d 614 was not inappropriate to the proof and that the evidentiary ruling was within the'trial court’s discretion. The judgment, therefore, is affirmed. I The Evidentiary Ruling As part of the Scogginses’ case in chief, portions of the deposition of Donald Houston were read to the jury. The following segment was excluded: (BY MR. EUBANKS): Q: “What do you consider to be a safe traveling distance at that particular time out there?” A: “Well, I believe everybody judges their own.” Q: “I understand that. This is Mr. Matthews’ question.” A: “Personally, me, probably three hundred feet.” Q: “Three hundred feet. All right, sir. And Mr. Latimer is one hundred and fifty, two hundred feet from you — two fifty — one fifty to two fifty.” A: “Uh-huh.” MR. EUBANKS: And if allowed, the Plaintiff would have also read from Mr.Houston’s deposition, commencing at page 45, line 1, and these were my questions: Q: “You mentioned when you first saw the Scoggins’ vehicle you could also see the Latimer tractor trailer rig?” A: “Yes, sir.” Q. “In the deposition we’ll say approximately how far you thought they were, but one more time, how far do you estimate there was between the two vehicles when you first saw them?” A: “A hundred and fifty, to two hundred and fifty foot.” Q: “Okay. And I believe you estimated that based on the conditions on the road. At that time, you felt that a safe distance was three hundred feet?” A: “Well, that would be my opinion, not exactly some other driver’s opinion.” Q: “Was that your opinion?” A: “Yes.” A: “I might as well do this now, because we’ll do it in the courtroom. Are you telling us that in your opinion he was closer than he should have been under those condition?” A: “No, sir, I’d say I was closer —“ and then there is a dot, dot — “that he’d be closer than I would feel comfortable at, yes.” Q: “But, you’re not attempting to make any judgment for him?” A: “No, sir.” Q: “That’s his decision?” A: “That’s his decision. He drives his and, you know, he has a feel of what he’s doing.” Q: “But it was closer than what you felt safe.” A: “Yes.” Appellants’ theory of the case is that Latimer was between one hundred fifty and two hundred fifty feet behind Scoggins when the initial impact occurred. Thus, they argue, a crucial issue was whether Latimer was following too closely, and Houston’s proffered testimony was probative of a failure by Latimer to keep a safe distance. Expert Witness Premise Appellants maintain that because Houston had driven a truck for thirty-one years, twenty-five of that for Coca-Cola, he was qualified as an expert by knowledge, experience and training to state an opinion as to a safe distance for Latimer’s truck. They cite Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984), for the proposition that in determining whether a witness is permitted to state an opinion as an expert, too rigid a standard should be avoided. A.R.E. Rule 702 (Testimony by experts) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. However, it is clear that appellants proffered Houston’s testimony not as an expert, but as an opinion by a nonexpert. During an in chambers discussion of this issue, the following occurred: THE COURT: Let me ask you this: Are you trying to make this man (Houston) an expert, too? MR. EUBANKS: No.2 We think, in effect, the appellants are asking us to decide de novo whether Houston was “qualified as an expert by knowledge, skill, experience, training, or education.” That we decline to do, if for no other reason than because the issue was not first presented in that context to the trial court. The result is we have no information as to Houston’s familiarity with the Latimer vehicle, its braking mechanisms, its cargo weight, or any other relevant factors from which to determine whether Houston was qualified as an expert. That determination must first be made at the trial level and when it is challenged on appeal, the issue is whether the appellant has met the heavy burden of demonstrating that the trial court has abused its discretion. Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989). Obviously, we are unable to hold he succeeded where there is no showing that the trial court ever ruled on whether Houston bore the necessary qualifications. Lay Witness Premise Whether the testimony -should have been admitted as the opinion of a nonexpert witness implicates A.R.E. Rule 701, which provides: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) Rationally based on the perception of the witness; and (2) Helpful to a clear understanding of his testimony or the determination of a fact in issue. We find no abuse of discretion in the trial court’s ruling. That Houston’s proffered testimony was speculative is best demonstrated by his clear reluctance to state what he considered to be a safe following distance for the Latimer vehicle. Appellants have not shown us whether Houston had any familiarity with Latimer’s truck or with any of the factors which might bear on Latimer’s ability to stop. We see some analogy to Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981), where we upheld as speculative the exclusion of an opinion by a lay witness that the defendant was “going like a bat out of hell.” In short, we cannot say the exclusion of Houston’s testimony was an abuse of discretion. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). Appellants submit that if Latimer’s opinion is admissible, then Houston’s should be as well. We find no connection between the two rulings, either substantively or procedurally. The trial court permitted Latimer to express his opinion that he was following at a safe distance and while appellants objected to that ruling, they do not challenge it on appeal. Rather, they ask us to hold that because the trial court admitted Latimer’s opinion, it should have admitted Houston’s opinion. But the rulings were not simultaneous — Houston’s testimony was at a much earlier point in the trial and must stand or fall on its own merit, not in correlation to the later ruling as to Latimer. Nor did appellants, in objecting to the Latimer testimony, ask the trial court to reconsider its exclusion of Houston’s testimony. Linder Rule 701 it was for the trial court to determine whether the Houston opinion was rationally based and helpful to a clear understanding of his testimony or the determination of a fact in issue. The admissibility of nonexpert opinion evidence is discretionary and we will not reverse unless the trial court has abused his or her discretion. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980). Given the obvious reluctance of the witness (Houston) to express an opinion as to what following distance was appropriate for an oncoming vehicle under extraordinary weather conditions, the absence of any proof that the difference between two hundred fifty feet and three hundred feet would have had any bearing on Latimer’s ability to avoid both the Coca-Cola truck and Gary Scoggins and, finally, the fact that the trial court carefully considered the proffered testimony in camera before excluding it, we cannot hold that an abuse of discretion occurred. To say otherwise would, we believe, be simply the equivalent of substituting our own judgment for that of the trial judge. II The Jury Instruction The facts, stated from the appellees’ point of view, indicate that Latimer had been behind Scoggins for some miles and though he had earlier thought to pass when an opportunity arose, because of increasing sleet he ruled that out and remained some distance behind. With ice accumulating on his windshield La-timer did not see the impact between Houston and Scoggins, thus his initial perception was of the Coca-Cola truck jackknifing into the south-bound lane sliding toward him. As earlier noted, when he veered to his right to evade the truck, he saw Scoggins on the right shoulder and was unable to avoid either vehicle.' Over Scoggins objection, the court instructed the jury in accordance with AMI 614: SUDDEN EMERGENCY A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation. Scoggins insists it was error to give the instruction because it was Latimer’s negligence that produced the emergency and in that situation the instruction should not be given. In Ashmore v. Ford, 267 Ark. 854, 591 S.W.2d 666 (Ark. App. 1979), Justice Newbern noted divergent lines of cases dealing with AMI 614, concluding: These approaches are not inconsistent. When they are combined, the result is that the trial judge may give the instruction in cases where there is some negligence on the part of the party seeking the instruction, but the instruction should not be given where the evidence is very strong that the party requesting the instruction has “created” the emergency by his own negligence. We regard that reasoning as sound, and we find no evidence that Latimer’s negligence produced the emergency, which seems undeniably to have been real and sudden. Whether Latimer maintained a safe distance or a proper lookout were submissible issues of negligence, but the relevant proof could not be characterized as “very strong” that the emergency was his own creation. The trial court heard the proof in its entirety and obviously considered AMI Civ. 3d 614 to be appropriate. We take no exception to that ruling. Affirmed. Dudley, Glaze, and Brown, JJ., dissent. Footnotes [1] Both trucks were tractor-trailers known as “18 wheelers.” [2] Record, p. 428.