Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
D. There was an error in law in permitting Officer Smith to testify as to Chance’s Vehicle Code Violation where he was not designated as an expert, not deposed as such, and based his opinion only on inadmissible hearsay. (C.C.P. section 657(7)).
In Richard v. Scott (App. 4 Dist. 1978) 144 Cal.Rptr. 672, 79 Cal.App.3d 57, the court was presented with an injury action arising out of a two-car collision at a controlled intersection. In that case the trial court correctly exercised its discretion in granting plaintiff’s motion for new trial on ground that it had committed error in admitting opinion of defendants’ accident reconstruction expert that plaintiff was traveling in excess of posted speed limit. The record supported trial court’s determination that many of the factual assumptions made by such expert in arriving at his opinion lacked sufficient evidentiary support.
According to all non-party eyewitnesses, Ms. Chance was very visible walking up to, into and in the crosswalk before the bus turned into her path 26 feet beyond the Eastern curb. Since Davie himself testified that the traffic light was green for him as he timed it, it would also have been green for Plaintiff Chance who consequently had the right of way over the bus since she was not turning.
Following this presentation of testimony, the jury was instructed as follows:
(1) CACI 700 Provides in relevant part: A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians … The failure to use reasonable care in driving a vehicle is negligence. Also,
(2) CACI 705. A driver must use reasonable care when turning; and
(3) CACI 710. The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.
Argument: To unbiased and attentive triers of fact following the law as read to them by the court, the above information required them to conclude that the Defendant’s bus driver, Paul Davie was negligent because he failed to properly look for and yield to pedestrian traffic moving parallel to his left before and during his left turn. But that’s not what occurred. Based on the position of the stopped bus, a conversation with his assistant, Officer Adamss, who knew even less than Smith and a single inadmissible and totally unreliable hearsay statement by one absent witness, Smith uncritically restated what he wrote in his report and thereupon concluded Chance violated CVC 21954(a). (RT of Smith’s Testimony, 30:19-28.)
Fourteen pencils immediately began wiggling above steno pads in the jury box as this statute was numbered and explained to law-abiding San Diego jurors. Since Smith further explained that this statute prohibits a pedestrian from entering a roadway outside a crosswalk into the right of way of a motor vehicle, Ms. Chance was thereafter convicted in the jurors’ minds of stepping into the path of a bus outside a crosswalk (aka jaywalking regardless of the court’s precautionary instruction and all the days of percipient testimony and cross examination to the contrary. No city in America loves and respects its men and women in uniform more than San Diego. When one of America’s Finest pronounced, under oath and in open court, his opinion that Ms. Chance had violated a law, it predictably was considered ex cathedra by authority-adoring San Diego jurors not to be questioned by the faithful. Jury foreman Mike Brown’s declaration observes how the jury refused to deliberate the basis of the policeman’s opinion and Greene’s declaration underscores the significance of that opinion. (See Part 8 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.