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, a minor by and through BRUCE R. 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, 

The Honorable Richard G. Phillips, Judge presiding. 

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 

/ 

Clerk 
Justice 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's vehicle 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 

2 
car. 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 lane about 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 

fender where accumulated road film and dust were disturbed. Palmer 

measured Campbell's position in the street and the placement of her 

injuries. From this investigation Palmer testified as to his 

conclusion that the point of contact was 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 

3 
into the traveled portion of the road." This testimony is the 

basis for the first claimed error. Palmer also testified over 

objection that in his opinion, it was unsafe for Reidle to stop his 

vehicle in the middle of the block. "It leads people to believe 

that traffic is going to stop for them in the middle 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 Court held that it was error to allow the officer to offer his 

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, it became the 

duty of Rorvik to identify those witnesses, including the 

highway patrolman before trial. (A proper disclosure by 

Rorvik of the intention to call the patrolman as an 

expert on civil liability would have warned Smith and led 

4 
to probable further motions to the court respecting the 

foundation for the patrolman's testimony as an 

expert.) ... If the information obtained by the patrolman 

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. [Citations omitted]. (Emphasis supplied.) 

-, Smith 751 P.2d at 1056. 

We do not conclude that Palmer is barred from testifying under 

_Smith. Here Johnson identified Palmer as an expert prior to trial 

and Campbell twice challengedthe foundation of Palmer's opinion by 

requesting the court exclude Palmer's testimony regarding the cause 

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 information to 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 accident by colliding with 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 

5 
Cline 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 

assumptions or facts underlvins the expert’s opinion, the 

weight to be given the testimony is for the trier of fact 

to determine. [Citations omitted.] (Emphasis supplied.) 

-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 to allow the investigating officer to offer opinion testimony 

regarding the cause of the accident. 

We point out that in the present case, Campbell filed the 

appeal based on a partial trial transcript which contained only the 

testimony before the District Court on the part of Officer Palmer. 

It did not contain any of the testimony of other witnesses. The 

6 
record 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 the middle 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] actions may 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 testimony on the propriety of 

Reidle's conduct. 

7 
Affirmed. 

We Concur: 

Justices 

8 
Justice Terry N. Trieweiler dissenting. 

I dissent 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 the purposes 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 investigation and subsequent opinion based on that 

investigation added nothing to the direct observations of these 

witnesses. As will 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 

9 
marked her location on the street and called in another officer who 

took photographs of the vehicle. He also recorded the names of the 

people who had witnessed the accident and later took statements 

from each of them. 

Officer Palmer testified that normally if there are skid marks 

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, he was unable to determine a point of impact. 

He examined the defendant's automobile for damage, and based 

upon the damage that he observed, he determined the point where the 

victim's body collided with the defendant's vehicle. 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 investigation consisted of interviewing witnesses, 

observing the vehicle, looking for skid marks and debris, and 

observing the whereabouts of the victim when he arrived. However, 

it was clear that the only part of that investigation which in any 

10 
way 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 Palmer was qualified as an expert in this case 

requires an analysis of more than whether he was 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. It provides 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 

knowledge which formed the basis for Officer Palmer's opinion. His 

11 
opinion was based exclusively on what he was told by the witnesses 

he interviewed. 

This case is similar to Pbyliarv. Boardof Tmtees (1980), 187 Mont. 

363, 609 P.2d 1226. In that case, the victim of the accident was 

a student at Missoula Technical Center and enrolled in a heavy 

equipment operation class. At the time of the accident, he was 

working behind a Caterpillar being 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-examination was 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 conclusion which 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. See Ziegler 

v. Crofoot (1973), 213 Kan. 480, 516 P.2d 954. The cause of 

the accident must be sufficiently complex to require 

explanation. See McGuire v. Nelson (1975), 167 Mont. 188, 

536 P.2d 767; Mnssoiii v. Stute Higllway 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 

tractor and the accident victim. At trial, an eyewitness 

gave his description of the accident, and other witnesses 

12 
testified concerning the actions of the tractor driver 

and the decedent. This evidence appears to 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 

prejudicial to the plaintiffs' case. However, the extent 

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 opinion as to the cause of the 

accident. These circumstances support the 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 the victim. The physician who attended the victim 

in the emergency room at the hospital testified about strangulation 

marks on her neck and other bruises and damage that he observed on 

her body. In addition, he was allowed to express his opinion that 

the force which caused the marks he observed was intended to cause 

her death. We held that whether he could express such an opinion 

depended on Rule 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 

13 
assist the trier of fact." State v. Campbell 

(1965), 146 Mont. 251, 258, 405 P.2d 978, 983. 

Dr. Elliott inferred from the nature of 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 jury was 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 

inadmissible under 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 jury was as qualified as Officer Palmer to 

listen to the observations of the eyewitnesses to this accident and 

determine whether the accident occurred because of the victim's 

sudden movement into the street or because 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 he was told by those witnesses were the victim's location when 

he arrived at the scene and the location of damage to the 

defendant's vehicle. However, none of that information contributed 

to the opinion that he was allowed to express regarding the cause 

of this accident. 

The majority 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 similarity between that case and this 

case is that there was an opinion offered by a law enforcement 

officer. That case did not involve a pedestrian-vehicle collision 

on the main street through town in broad daylight with eight direct 

14 
witnesses available to testify. The Clirte case involved a head-on 

snowmobile collision in the mountains. The only two competent 

witnesses were the plaintiff 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 the vehicles 

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. The deputy's opinion in that case was 

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 see whether 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. Estate of 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. 

15 
The only thing that Officer Palmer added to this case beyond 

what the eyewitnesses had to offer was 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 OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Douglas C. Allen 

Attorney at Law 

P.O. Box 2886 

Great Falls, MT 59403 

Douglas D. Howard 

Heard & Howard 

P.O. Box 926 

Columbus, MT 59019 

Dane C. Schofield 

Peterson & Schofield 

2906 Third Ave. No. 

Billings, MT 59101 

ED SMITH 

CLERK OF THE SUPREME COURT 

NTANA