No. 91-202 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

BRUCE R. CAMPBELL, as the father of CASSIE CAMPBELL, a minor; and CASSIE CAMPBELL, aminor by and throughBRUCER. CAMPBELL, her next friend

### , Plaintiffs and Appellants,
-vsJEFFREY DEAN JOHNSON.

APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Richland, TheHonorableRichard G. Phillips,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Douglas C. Allen, Attorney at Law, Great Falls, Montana; Douglas D. Howard, Heard & Howard, Columbus,Montana. For Respondent: Dane C. Schofield, Peterson & Schofield, Billings, Montana.

Filed: Submitted on briefs: August 15, 1991 Decided: December 12, 1991

/ ClerkJustice Fred J. Weber delivered the Opinion of the Court. Plaintiff, Cassie Campbell (Campbell) brought a negligence action against the defendant,Jeffrey Dean Johnson (Johnson) as a result of an auto

-pedestrian accident. A jury in the Seventh Judicial District Court, Richland County, Montana found that Johnson was not negligent. Campbell appeals. We affirm. The following issues are brought by the plaintiff on appeal: 1. Was it error for the investigating officer to offer opinion testimony regarding the cause of the accident? 2. Was 

### it reversible error for the investigating officer to offer opinion testimony regarding the unsafe behavior of another driver? On February 28, 1987, while Campbell was crossing in the middle of the 400 block of South Central Avenue, in Sidney, Montana, Campbell and Johnson'svehicle collided. Central Avenue is a four lane street with a parking lane on both sides running north and south. The 400 block on Central Avenue has a traffic light at the intersection to the south, and a crosswalk at the intersection to the north. Just prior to the accident Johnson was driving his car in the left southbound lane of Central Avenue. Although Johnson saw Campbell by the curb waiting to cross the street, he looked away before she stepped into the street. Campbell stated that she did not see Johnson's car before stepping into the street. Campbell safely crossed the right southbound lane, then stepped into the left southbound lane and into the right front fender of Johnson's 2car. Campbell was twelve years old at the time of the accident. The investigating officer, Dennis Palmer (Palmer) of the Sidney police department, testified that when he arrived at the scene, Johnson had moved his car and Campbell was lying in the street in the right southbound traffic laneabout fifteen feet from the curb. Palmer testified that no skid marks appeared on the roadway, indicating that Johnson did not apply his brakes. Similarly, he found no scuff marks from the collision. Palmer examined the bent radio antenna, the windshield damage, the position of dents on Johnson's vehicle as well as the right front fenderwhere accumulatedroad filmand dustwere disturbed. Palmer measured Campbell's position in the streetand theplacement ofher injuries. From this investigation Palmer testified as to his conclusion that the point of contactwas the right front fender of Johnson's vehicle. Palmer also obtained statements from Campbell, Johnson and several eye witnesses to the accident. Palmer testified that the witness statements were consistent with his conclusion that Campbell impacted with the right front fender of the vehicle. An eye witness to the accident,David Reidle (Reidle),was driving in the left northbound lane. According to his statement, Reidle observed Campbell waiting to cross the street and stopped his vehicle in the middle of the block to allow Campbell to cross. At the trial, over objection of the plaintiff, Palmer testified that in his opinion "the accident was caused by the sudden movement of the pedestrian in the middle of the block out

3into the traveled portion of the road." This testimony is the basis for the first claimed error. Palmer also testified over objection that inhis opinion, itwas unsafe forReidle to stophis vehicle in the middle of the block. "It leads people to believe that traffic isgoing to stop for them in themiddle of the block." This testimony is the claimed basis for the second error.

Was it error for the investigating officer to offer opinion testimony regarding the cause of the accident? Appellant contends that Palmer's opinion testimony regarding the cause of the accident was inadmissible under Smith v. Rorvik (1988), 231 Mont. 85, 751 P.2d 1053. Smith involved an autopedestrian accident where the defendant failed to list the investigating officer as an expert prior to trial. In that case, this Courtheld that it was error to allow the officer to offerhis opinion as to the negligence of one of the parties. Clearly, this case is distinguishable from Smith. Here, Palmer's testimony concerned the cause of the accident, not the negligence of the parties. Further in this case, Johnson listed Palmer as an expert prior to trial. In Smith this Court concluded that because the officer was not listed as an expert prior to trial, the plaintiff lacked adequate opportunity to challenge the basis of the officer's opinion. Upon proper requests by Smith through interrogatories that Rorvik identify any expert witnesses, itbecame the duty of Rorvik to identifythosewitnesses,includingthe highway patrolman before trial. (Aproper disclosure by Rorvik of the intention to call the patrolman as an expert on civil liabilitywould havewarned Smith and 

### led 4to probable furthermotions to the court respecting the foundation for the patrolman's testimony as an expert.)

# ... Ifthe informationobtainedby thepatrolman throuqh his investiqation were insufficient for him to form 

### an opinion as an expert, the lack of foundation to qualify him for his opinion would be an issue for determination. [Citationsomitted]. (Emphasissupplied.)



### -, Smith 751 P.2d at 1056. We do not conclude that Palmer isbarred fromtestifyingunder _Smith. HereJohnson identified Palmer as an expert prior to trial and Campbell twice challengedthe foundation of Palmer's opinionby requestingthe court exclude Palmer's testimony regardingthecause of the accident. Campbell engaged in extended cross-examination of witness Palmer. In denying Campbell's pretrial motion in limine and her objection at trial, the trial court found that Palmer had sufficient informationto testify as an expert regarding the cause of the accident. We agree with the trial court's holding. Palmer investigated the accident by measuring Campbell's position in the roadway, examining Campbell's injuries as well as the antenna, windshield, dents, and the places on Johnson's fender where dust had been disturbed. In addition, he found no skid marks to indicate that Johnson applied his brakes prior to impact. After examining the physical evidence and obtaining witness statements, Palmer determined Campbell's point of impact with the car and concluded that Campbell caused the accidentby collidingwith the right front fender of Johnson's car. Defendant asserts that this Court should defer to the ruling of the trial court which allowed the opinion testimony, citing 5Cline v. Durden (1990), 246 Mont. 154, 803 P.2d 1077. Cline stated:



# ... Under the Montana Rules of Evidence, the trial court is qiven wide latitude in determinina whether to admit opinion testimony of investiqative officers. Leeway is allowed in such instances, and provided that the cross- examiner is qiven adequate opportunity to elicit anv assumptionsor factsunderlvinstheexpert’sopinion,the weight tobe given the testimony is for the trier of fact to determine. [Citationsomitted.] (Emphasissupplied.)

-I Cline 803 P.2d at 1080. Under Cline the trial court here was given wide latitude in determining whether to admit opinion evidence of the investigative officer. Palmer testified that he studied accident investigation during basic training at the Montana Law Enforcement Academy. After six years as a law enforcement officer, Palmer investigated approximately 200 accidents prior to this accident. The evidence obtained by witness Palmer during his investigation, coupled with his experience in accident investigation, provided a sufficient basis for the court to determine that Palmer had a proper foundation to testify. As in Cline, the record indicates that Campbell cross

-examined Palmer to elicit the assumptions and facts underlying his opinion testimony. We conclude the District Court properly admitted the opinion testimony. We hold that it was not
error toallow the investigating officerto offer opinion testimony regarding the cause of the accident. We point out that in the present case, Campbell filed the appeal based on apartial trial transcript which contained only the testimony before the District Court on thepart of Officer Palmer. It did not contain any of the testimony of other witnesses. The 6record does include minute entries made by the clerk which contain

a summary of the testimony of some of the witnesses. As a result

we are not able to compare the testimony on the part of other witnesses to the transcribed testimony of Officer Palmer. I1 Was 

### it reversible error for the investigating officer to offer opinion testimony regarding the unsafe behavior of a non

-party driver? Appellant contends Palmer's testimony that it was unsafe for Mr. Reidle to stop his vehicle in themiddle of the block to allow Campbell to cross was irrelevant, conclusory and prejudicial to Campbell's case. Johnson contends that this argument 

### is speculative and urges this Court to uphold the findings of the District Court when it stated: While the conduct of Mr. Reidle does not appear to have anything to do with the accident itself, Plaintiffs speculate that any comment concerning the propriety of his [Reidle's] actionsmay have been given great weight by the jury. However, there is nothing to indicate that the jury accorded any significant weight to such comment. To grant a new trial only on the basis of this argument would be speculation on the part of the Court. We conclude that the District Court correctly characterized the plaintiff's argument as speculative and that the testimony regarding the propriety of the conduct of a non

-party witness did not prejudice Campbell's case. Campbell failed to offer any evidence tending to show that the testimony was significant. We hold that it was not reversible error for the trial court to allow the officer to offer opinion testimonyon thepropriety of Reidle's conduct. 7Affirmed.

We Concur:

Justices

8Justice Terry 

### N. Trieweiler dissenting. 

### Idissent from the opinion of the majority. This Court has gotten to the point where 

### it automatically admits opinion testimony of law enforcement personnel in auto accident cases without adequate scrutiny of whether the testimony

serves any of thepurposes for which opinion testimony is normally allowed. This is a simple case. Cassie Campbell was attempting to
cross the highway when she was either struck by or ran into the vehicle being driven by the defendant. The 

### issue 

### is whether she negligently ran out into the street, or whether the defendant was negligent by failing to observe her and have his vehicle under sufficient control so that he could avoid her. If both were negligent, the issue was then how their negligence compared. Including the parties, eight people witnessed the accident. The investigating officer, Dennis Palmer,was not one of them. Some or all of these witnesses testified before the jury regarding their direct observations of how the accident occurred. Officer Palmer's investigationand subsequent opinionbased on that investigation added nothing to the direct observations of these witnesses. Aswill be shown, his opinion was based primarily on what he was told by the same witnesses who testified at trial. When Officer Palmer arrived at the scene of the accident, the victim was lying in the street. The vehicle with which she collided had been moved and was parked further to the south. He 9marked her location on the streetand called in anotherofficerwho tookphotographs of thevehicle. He also recorded the names of the people who had witnessed the accident and later took statements from each of them. Officer Palmertestified that normally if thereare skidmarks at an accident scene he can determine speed and direction from observing and measuring them. However, he could not find any skid marks at this accident scene. He testified that he normally determines the point of impact from debris left on the road, but at this accident scene he found neither scuff marks nor debris in the vicinity where the accident occurred. Therefore,hewas unable to determine a point of impact. He examined the defendant's automobile for damage, and based upon the damage thathe observed,hedetermined thepoint where the victim's body collidedwith thedefendant'svehicle. However,what he observed added nothing to what he had already been told by the witnesses 

### to the accident. Furthermore, he could not tell from looking at the car whether the victim stepped into the car, ran into the car, or was merely standing in the street when she was struck by the car. His entire investigationconsisted of interviewingwitnesses, observing the vehicle, looking for skid marks and debris, and observing thewhereabouts of thevictim when he arrived. However, itwas clear that the only part of that investigationwhich in any

10way enlightened him about how the accident occurred, was his interview of the witnesses. Although he had training and qualifications which would have enabled him to estimate speed and identify a point of impact if sufficient physical evidence had been available, none of that evidence was available. There was nothing in his background or training which enabled him to draw any better conclusion from having interviewed the witnesses than the jury was able to draw from listening to those same witnesses. In spite of these facts and this lack of foundation, he was allowed to express the following opinion during the trial: It's my opinion that the accident was caused by the sudden movement of the pedestrian in the middle of the block out into the traveled portion of the road. Whether Officer Palmerwas qualified asan expert in this case requires an analysis of more thanwhether hewas a law enforcement person who investigated an accident. It requires an analysis of our rules regarding opinion evidence and how they apply to the facts in this case. Rule 702,M.R.Evid., controls. Itprovides as follows: 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. There was no scientific, technical, or other specialized His knowledge which formed thebasis forOfficer Palmer's opinion.

11opinionwas based exclusively onwhat hewas told by thewitnesses he interviewed. This case 

### is similar toPbyliarv.BoardofTmtees (1980), 187Mont. 363, 609 P.2d 1226. In that case, the victim of the accidentwas
a student at Missoula Technical Center and enrolled in a heavy equipment operation class. At the time of the accident, he was workingbehind a Caterpillarbeing operated by another student when the Caterpillar reversed direction and ran over and crushed him. The victim's family sued the school district for dangerous supervision and operation of the class. One of the instructors at the school was called as a witness at trial, and on cross-examinationwas allowed to give his opinion regarding the cause of the accident. We held that such opinion testimony was inappropriate and a basis for a new trial. In that opinion,we reached the following conclusionwhich is relevant to this case: Simms gave his opinion as to the proximate cause of the accident. Opinion evidence concerning the cause of an accident is admissible only if the subject matter is beyond the ordinary understanding of the jury. SeeZiegler 

### v. Crofoot (1973), 213 Kan. 480, 516 P.2d 954. The cause of the accident must be sufficiently complex to require explanation. SeeMcGuire v.Nelson (1975), 167 Mont. 188, 536 P.2d 767; Mnssoiii

### v. StuteHigllway Commission (1974), 214 Kan. 844, 522 P.2d 973, 979. See also Dobkowski v.Lowers, hlc. (111.C.A. 1974), 20 111.App.3d 275, 314 N.E.2d 623. Here, there was no need for such testimony. The accident was relatively simple. It involved a single tractor,and the actions of only two individuals, the driver of the tractorand the accidentvictim. At trial,an eyewitness gavehisdescription of theaccident,and otherwitnesses
12testified concerning the actions of the tractor driver and thedecedent. This evidence appearsto be sufficient to allow the jury to make an independent judgment as to the ultimate cause of the accident. Thus, we conclude there was no abuse of discretion in determining that opinion testimony was not needed here. The Board contends that Simms' testimony was not prejudicialtotheplaintiffs' case. However, theextent to which the deceased's own actions caused the accident was obviously a crucial part of the Board's defense. No other witnesses gave their opinionasto the cause of the accident. These circumstances supportthe trial court's conclusion that Simms' testimony was manifestly prejudicial to the plaintiff's case. 

### Ployhar, 609 P.2d at 1228. We excluded opinion evidence for similar reasons in State

### v. ffoward (1981), 195 Mont. 400, 637 P.2d 15. In that case, the defendant was charged with attempted homicide and other crimes of violence against thevictim. Thephysicianwho attended thevictim in the emergencyroom at thehospital testified about strangulation marks onher neck and other bruises and damage thathe observed on her body. In addition,he was allowed to expresshis opinion that the force which caused themarks he observed was intended to cause her death. We held that whether he could express such an opinion depended onRule 702 set forth above,and we explained the test for admissibility under Rule 702 as follows: Stated another way, the test is:

'I. 

# . . whether the subject is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness, or whether the matter 

### is sufficiently beyond common experience that the opinion of an expert would 13assist the trier of fact." State 

### v. Campbell (1965), 146 Mont. 251, 258, 405 P.2d 978, 983. Dr. Elliott inferred fromthe natureof the injuries that the person who inflicted them did so with an intent to murder. We find that under the circumstances of this case, the jurywas as qualified as the doctor to draw an inference from the circumstantial evidence as to intent, and therefore the doctor's opinion on intent was inadmissibleunder Rule 702,Montana Rules of Evidence. Howard. 637 P.2d at 17.
I find that both of these cases control the outcome in this

case. In this case,the jurywas asqualified asOfficer Palmer to listento the observations of the eyewitnessesto this accidentand determine whether the accident occurred because of the victim's sudden movement into the street orbecause the defendant failed to be sufficiently alert to avoid the victim when she crossed the street. The only things that Officer Palmer knew in addition to what hewas told by thosewitnesseswere thevictim's location when he arrived at the scene and the location of damage to the defendant'svehicle. However,noneof that information contributed to the opinion that he was allowed to express regarding the cause of this accident. Themajority relies on 

### Clinev.Durden (1990), 246 Mont. 154, 803 P.2d 1077, as authority for the admission of Officer Palmer's testimony. However, the only similaritybetween that caseand this

case 

### is that there was an opinion offered by a law enforcement officer. That case did not involve a pedestrian

-vehicle collision

on themain street through town in broad daylightwith eight direct 14witnesses available to testify. The Clirte case involved a head

-on snowmobile collision in the mountains. The only two competent witnesses were theplaintiff and his companion. The defendant had

no recollection of what happened due to the trauma that he suffered. The only issue involved the orientation of thevehicles and their direction of travel at the point of impact. The investigating officer was allowed to express an opinion on that issue based upon physical evidence, including debris and spilled gasoline found at the scene. Thedeputy's opinion in that casewas based directly upon his training in accident reconstruction, and not on what he was told by any witness who testified at trial. What this Court has gotten in the habit of doing is simply looking to seewhether law enforcement personnel have training in accident investigation and reconstruction, and then based on that training, concluding that they are automatically qualified to express an opinion at trial without looking to see if that opinion is based upon the officer's training or experience. For other examples of such non sequitur analysis, see

### Foreman v.

### Minnie (1984),
211 Mont. 441, 689 P.2d 1210, and Scofield

### v.Estateof

### Wood (1984), 211 Mont. 59, 683 P.2d 1300. This kind of analysis 

### is inconsistent with our rules for all other expert witnesses and should be corrected.

15The only thing that Officer Palmer added to this case beyond what the eyewitnesseshad to offerwas his opinion and his uniform. That was unfair. I would reverse.

J stice

I concur in the foregoing dissent of Justice Trieweiler.

16

### December 12,

### 1991 CERTIFICATE

### OFSERVICE I herebycertifythatthefollowingorderwas sentby United Statesmail,prepaid,tothe followingnamed: DouglasC.Allen AttorneyatLaw 

### P.O.Box2886 GreatFalls,

### MT 59403 DouglasD.Howard Heard &

### Howard P.O.

### Box926 Columbus,MT 59019 DaneC.Schofield Peterson&

### Schofield 2906ThirdAve.No. Billings,MT 59101 EDSMITH CLERKOF

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