Davidson v. Prince

BILLINGS, Associate Presiding Judge.

Appellant Grant Davidson was injured by a cow or a steer that had escaped from a wrecked truck driven by Erwin M. Prince, an employee of appellee Folkens Brothers Trucking. Subsequently, Davidson filed a negligence action against Prince and Folkens. A jury found appellees sixty percent negligent and appellant forty percent contributorily negligent. Based on this verdict, the judge entered a judgment in favor of appellant in the amount of $27,323.88 plus interest. Appellant moved for a new trial. The court denied this motion. Appellant appeals from the denial of his motion for a new trial. We affirm.

FACTS

On May 28, 1986, appellee was driving a truck containing animals. Appellee negligently overturned the truck, releasing animals onto the highway and into the surrounding area. Appellant was injured when he was attacked by a steer that had escaped from appellee's vehicle.

At trial, conflicting evidence was introduced regarding the proximity of appellant to the steer before the steer charged, ranging from forty feet to ten feet. Over appellant's objections, appellee's counsel introduced into evidence a statement from a letter written to the appellee wherein appellant estimated the distance as ten feet. Based on this evidence, appellee argued that appellant had cornered the steer and was therefore partly responsible for his injuries.

At trial, the jury awarded appellant total damages in the amount of $45,539.80. The jury, however, found appellant forty percent at fault and accordingly, appellant was ultimately awarded a judgment of only $27,323.88.

Appellant filed a motion for a new trial, contending the trial court had committed three errors of law. First, appellant argued the trial court erred in instructing the jury regarding the tax consequences of a personal injury judgment. Second, appellant contended the trial court erred in precluding his expert from testifying that appellee was negligent. Third, appellant claimed the trial court erred in admitting a statement made in a settlement letter.

The trial court denied appellant's motion for a new trial, concluding that even if error had occurred, it was harmless. Appellant appeals this decision, claiming the errors committed by the trial court were prejudicial.

[. . .]

II. PRECLUSION OF EXPERT TESTIMONY

During the presentation of appellant's case in chief, Mr. Newell Knight, an accident reconstruction expert, was called to testify regarding appellee's negligence. Counsel for appellant asked Mr. Knight if he had an opinion regarding whether appellee was negligent. Mr. Knight responded affirmatively. When Mr. Knight was asked to express his opinion, counsel for appellee objected on the ground that the question pertained to an ultimate issue to be decided by the jury. The trial court sustained appellee's objection. On appeal, appellant argues the trial court committed prejudicial error by excluding Mr. Knight's testimony because such opinion testimony is expressly allowed under Utah Rule of Evidence 704.

In reviewing the admissibility of evidence at trial, we give deference to the trial court's advantageous position, and do not overturn the result unless it is clear the trial court erred. . .

Traditionally, an expert was not allowed to offer an opinion on an ultimate issue to be decided by the jury. . . . Expert testimony regarding ultimate issues, however, is now admissible under Utah Rule of Evidence 704. This rule reads: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” . .

The trial court's exclusion of this testimony, however, can be affirmed on the ground that it was a legal conclusion. Although Rule 704 abolishes the per se rule against testimony regarding ultimate issues of fact, it does not allow all opinions. “The Advisory Committee notes [to Rule 704] make it clear that questions which would merely allow the witness to tell the jury what result to reach are not permitted. Nor is the rule intended to allow a witness to give legal conclusions.” . . . Thus, an expert generally cannot give an opinion as to whether an individual was “negligent” because such an opinion would require a legal conclusion. . . .

There is no bright line between permissible questions under Rule 704 and those that call for overbroad legal responses. Here, however, the intended response when placed in context was an inadmissible one. Mr. Knight was allowed to give his opinion as to, inter alia, the reason appellee's truck overturned while going around a curve, that the truck was traveling too fast for the curve, what the speed limit was at the curve, whether a person hauling livestock should be concerned with his load and what the concerns should be, and whether a person hauling livestock could foresee the possibility of injury if the truck overturned. Indeed, the only evidence the trial court excluded was Knight's conclusion regarding whether appellee was negligent. Additionally, Knight's testimony was not technical or difficult to understand, but was expressed in lay terms. The trial judge did not err in excluding Mr. Knight's opinion testimony that appellee was negligent. The excluded testimony was an answer to a specific question which would appear on the verdict form, a question which must be answered based upon the judge's definition of a legal term “negligence.” Questions which allow a witness to simply tell the jury what result to reach are not permitted.

Given that Knight's testimony was easily understandable and that Knight was allowed to testify as to everything except his final conclusion that appellee was negligent, the testimony was properly excluded as the jury was capable of drawing its own conclusions from the evidence presented and after instruction from the court.

III. ADMISSION OF STATEMENT IN “SETTLEMENT” LETTER

Finally, appellant contends the trial court erred in allowing into evidence statements he made in a letter to appellee. Appellee's theory at trial was that appellant was negligent in cornering the steer which had escaped from appellee's truck. In support of this theory, appellee emphasized the distance between appellant and the animal at the time the animal charged. As noted earlier, appellant in deposition testimony estimated the distance to be approximately forty feet. Additional evidence was presented at trial that the distance may have been approximately twenty-two feet. At trial, appellee's counsel introduced a statement from a letter written to appellee wherein appellant estimated the distance at ten feet, a distance which tended to support appellee's theory. Appellant claims the trial court erred in admitting this statement because it was made as part of settlement negotiations.

The admissibility of settlement negotiations is governed by Utah Rule of Evidence 408 which states:

"Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution."

. . . Accordingly, this court looks to federal law interpreting Federal Rule of Evidence 408 to define the contours of Utah Rule of Evidence 408. . . .

"In order for the exclusionary rule to attach, the party seeking to have evidence of offers to compromise or statements made in the course thereof excluded must show that the discussions in question were made in 'compromise negotiations.'" . . .

The letter in question, from appellant and his wife to appellee, begins by reviewing the factual circumstances of the accident [FOOTNOTE 8] and it is in this factual recitation that appellant admits “he stopped and got out some 10 feet from the animal.” Following this recitation of facts, the letter continues by stating, “[w]e don't intend to let you or that trucking company off, with a letter telling us that your [sic] not responsible.” In conclusion, appellant's letter states, “[y]ou may speak with us directly or we can send it to lawyers and to court, you decide.”

=====FOOTNOTE 8=====

This portion of the letter reads:

It appears you have been poorly informed as to Mr. Grant Davidson's injury claim.

Please allow us to clarify: Mr. Davidson while performing his job for the D & RGW Railroad, saw the injured cow sitting on the railroad. He stopped and got out some 10 feet from the animal. He made no move towards the injured cow but while standing still was charged. He fled the cow, but it caught him, goring him in the back and sending him air born for approximately 20 feet where he landed on the rail on his knee.

The attack continued with the cow attempting to trample Mr. Davidson to death, as he lay stunned with a concussion on the ground he pushed the animal off and escaped to the safety of a rail car.

The cow continued to charge repeatedly and finally moved off. It then charged many others before it was killed.

Mr. Davidson did not pursue, chase or attempt to move the cow. As it (the cow) was injured in the accident, it became abnormally dangerous.

We have been advised by legal counsel that the contents of a truck, when they spill and are dangerous (as this case) are the responsibility of the insurer when those dangerous contents injure innocent people.

Mr. Davidson has a permanent knee problem, and must wear a brace while doing any work. He's had 16 years with this job, which is now jeopardized by this injury. He has lost wages, has great suffering and now is going to be disabled the rest of his life.

=====End Footnote=====


We believe the trial judge was correct in admitting the statement from the letter sent by appellant to appellee because the letter was not an offer to compromise appellant's claim, nor was it written as part of settlement negotiations. To the contrary, this letter is merely an attempt to inform appellee as to the facts of the incident. Furthermore, appellant in the letter demands payment in full of appellant's claim and its whole tenor is that appellant will not compromise one bit. [FOOTNOTE 9]

=====FOOTNOTE 9=====

Even if appellant's letter was construed to be a statement made in settlement negotiations, courts construing Federal Rule of Evidence 408 and similar state rules have held that evidence of statements made in settlement negotiations can and should be admitted for purposes of impeachment. For example, in United States Aviation Underwriters, Inc. v. Olympia Wings, Inc., . . . the court held that the trial court had properly acted within its discretion under Rule 408 when it admitted evidence of a settlement that was offered to impeach the plaintiff's earlier deposition testimony. In so holding, the court stated that Federal Rule of Evidence 408 “permits settlement evidence for any purpose except to prove or disprove liability or the amount of the claim.” . . . Similarly, in County of Hennepin v. AFG Indus., Inc., . . . the court allowed evidence of a settlement to impeach. The court stated that although Rule 408 excludes evidence of a settlement to prove liability, it “ ‘does not require exclusion when the evidence is offered for another purpose, such as proving the bias or prejudice of a witness ...,’ ” adding that “[t]he Rule codifies a trend in case law that permits evidence of a settlement to impeach.” . . . Furthermore, in Slusher v. Ospital, . . . the Utah Supreme Court stated, albeit in dicta, that under Utah Rule of Evidence 408, evidence of compromise is admissible for impeachment purposes. In Slusher, the court was considering the effect of two statutes which were superseded by the Utah Rules of Evidence, . . . The court stated that “[t]aken together, the two statutes resulted in a rule not unlike Utah Rule of Evidence 408, now in effect. In other words, they precluded introduction of the settlement for the purpose of establishing liability but not for the purposes relating to credibility.” . . .

Thus, even if appellant's letter to appellee were to be construed to have been made as part of settlement discussions, it could be admitted to impeach appellant's prior testimony regarding the distance between himself and the steer prior to the accident.

=====End Footnote=====

In sum, we conclude that the trial judge did not err in excluding appellant's expert testimony that appellee was negligent. Such testimony was a legal conclusion and did not assist the trier of fact and, therefore, was properly excluded. Additionally, the trial judge did not err in admitting a statement in which appellant estimated that the distance between himself and the steer prior to the accident was ten feet. The statement was not made in the course of settlement negotiations. Finally, although we conclude the trial judge erred by instructing the jury regarding the tax consequences of the plaintiff's award, we find the error harmless. Accordingly, we affirm.

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