Trotier v. Bassett

Trotier v. Bassett (2001-273); 174 Vt. 520; 811 A.2d 166

[File 20-Aug-2002]

                                 ENTRY ORDER

                     SUPREME COURT DOCKET NO.  2001-273

                               MAY TERM, 2002


  John P. Trotier	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Chittenden Superior Court
                                       }
  Opal P. Bassett	               }
                                       }	DOCKET NO.  S0757-98 CnC


             In the above-entitled cause, the Clerk will enter:

       Plaintiff John Trotier appeals from the trial court's denial of two of
  his motions - one for judgment as a matter of law and the other for a new
  trial - in this automobile negligence case.  On appeal, plaintiff argues
  that the court erred by not construing certain statements of defendant as
  judicial admissions, which would have established liability, and by
  excluding opinion testimony of an expert witness.  We affirm.

       The relevant facts of this case are not in dispute.  This personal
  injury action arose out of an automobile collision at the intersection of
  Route 7 and Route 22A in Ferrisburg, Vermont.  Plaintiff was a front-seat
  passenger in one of the cars driven by defendant Opal Bassett.  The other
  car was driven by Meggan Markowski.  Route 22A comes in from the west and
  ends at a T-shaped intersection with Route 7, which runs north and south. 
  On the day of the collision, Ms. Markowski was driving south on Route 7 and
  had the right-of-way.  Defendant, traveling east on Route 22A, approached
  the intersection and attempted to make a left hand turn onto Route 7 going
  north.  While defendant's car was in the intersection, Ms. Markowski's car
  collided with it, causing serious damage to both cars and physical injury
  to plaintiff.  At the scene of the accident, Sgt. Genova of the Vermont
  State Police interviewed defendant and Ms. Markowski and drew a rough map
  of the accident scene.  Ms. Markowski's car left skid marks when she tried
  to avoid hitting defendant's vehicle, but Sgt. Genova did not measure the
  length of them.
        
       Plaintiff sued both defendant and Ms. Markowski, and Ms. Markowski
  also sued defendant.  The trial court consolidated the three cases.  Ms.
  Markowski moved for summary judgment on plaintiff's claim against her,
  which plaintiff did not oppose.  The only opposition came from defendant
  who intervened to oppose the motion.  Despite that opposition, the court
  granted the motion and dismissed plaintiff's claims against Ms. Markowski. 
  Plaintiff's case against defendant then went to trial by jury on November
  15 and 16, 2000, and the jury returned a verdict in favor of 

 

  defendant.  Plaintiff filed motions for judgment as a matter of law and, in
  the alternative, for a new trial.  The trial court denied both motions.

       On appeal, plaintiff makes two arguments.  First, he argues that
  certain statements made by defendant in her deposition and at trial
  constitute judicial admissions of liability.  Furthermore, plaintiff
  contends that because defendant admitted liability and was the only
  remaining defendant in the consolidated case, the court erred by not
  granting judgment as a matter of law in favor of plaintiff before the issue
  reached the jury.

       The first statement in question was made in defendant's deposition. 
  During the deposition, defendant said that she "had to have been at fault
  to some degree" for the accident.  Plaintiff questioned defendant at trial
  about this answer:

    Q: Ms. Bassett, you testified that you thought that both of you
    were at fault and Meggan Markowski was at fault.
    A: Yes, I could have been at the time.
    Q: And you felt that Ms. Markowski should have gone to the right,
    pulled to the right?
    A: Right.
    Q: And you believe that this accident is partially your fault
    because you should have estimated her speed before you attempted
    to make the left-hand turn?
                        MR. BREDICE: Objection.
    A: That was the thought I had.  That was not like yes or no.
                         THE COURT: Overruled.
    Q: I'm sorry, what was your answer?
    A: Yes, I did say that at the time, but that was general
    conversation.  We both had to have been at fault to some degree.

  During cross-examination by defendant's own attorney, defendant read her
  deposition testimony word for word to the jury: "I'm a odd duck, I guess. 
  I would almost say it could be both our faults, but ultimately I think she
  could have done better in passing me by staying further over to the right."
        
       Whether defendant's statements constituted a judicial admission of
  liability is a question of law.  We review questions of law de novo.  State
  v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997).  A judicial
  admission is testimony to a fact which is within the witness's personal
  knowledge and which meets the following requirements: (1) the statement
  must be clear; (2) it must be an unequivocal concession of fact; (3) the
  statement must be absolute and without qualification; (4) it must be made
  for the express purpose of dispensing with formal proof of one of the facts
  in issue; and (5) the party testifying must not have made any effort to
  retract, qualify, or otherwise explain the positive force of the evidence. 
  See State v. McGrath, 130 Vt. 400, 402, 296 A.2d 636, 638 (1972) (judicial
  admission must be "unequivocal concession" of fact); Granite City Coop.
  Creamery Ass'n v. B & K Cheese Co., 115 Vt. 408, 412, 63 A.2d 193, 196
  (1949) (judicial 

 

  admission must be "made absolutely and without qualification, for the
  express purpose of dispensing with formal proof of one of the facts in
  issue," and parties made no attempt to withdraw, modify, or retract
  statement); Raptis v. Alexander, 104 Vt. 203, 203, 158 A. 73, 73 (1932)
  (judicial admission found where defendant's attorney "expressly admitted
  that the plaintiff was entitled to "judgment on the notes" that were
  subject of litigation); Hall v. Fletcher, 100 Vt. 210, 212, 136 A. 388, 389
  (1927) (attorney's statement held judicial admission where "made by the
  defendant's attorney during the trial of the cause, for the express purpose
  of dispensing with the formal proof of one of the facts in issue").

       In arguing that defendant's statements constituted a judicial
  admission, plaintiff focuses particularly on the deposition statement that
  defendant had to have been at fault to some degree, to which defendant
  testified at trial.  We cannot find that this testimony constituted a
  judicial admission for several reasons.  First, it is not clear or
  unequivocal.  Plaintiff has clipped defendant's deposition testimony,
  leaving out that she said she "would almost say" that the accident "could
  be both our faults."  The use of "almost" made the statement equivocal.  It
  became even more equivocal when defendant explained it in her trial
  testimony as set out above.

       Second, there is no indication that either the deposition statement or
  the trial testimony was made to dispense with proof of defendant's
  liability.  Finally, in his closing argument, defendant's attorney flatly
  denied that defendant was at fault:

    [Defendant] entered the intersection under the reasonable belief
    that she had enough distance to do that safely and that she had
    enough time to do that safely.  The accident was not her fault. 
    But because I'm not on the jury and I'm not the one who's making
    the decision, I have to take into account the possibility that you
    may come to a different conclusion.  And if you do, I have to
    address the issue of damages.  But my discussion of the issue of
    damages is in no way a concession concerning liability in this
    case.

       Judicial admissions are an efficient means by which to isolate the
  contested facts from the facts which either party has already admitted are
  true.  The requirements for an admission are strict, however.  Considering
  the context in which the statements in question were made and the
  requirements for a judicial admission listed above, defendant's statements
  were clearly not judicial admissions.  Thus, the trial court did not err by
  denying plaintiff's motion for judgment as a matter of law.

       The second argument on appeal relates to the trial court's ruling that
  limited the testimony of plaintiff's expert witness.  One of plaintiff's
  theories of the case was that defendant was negligent per se because she
  violated 23 V.S.A. § 1048 (b), a highway safety statute.  See Bacon v.
  Lascelles, 165 Vt. 214, 222, 678 A.2d 902, 907 (1996) (proof of a
  defendant's violation of a safety statute creates a rebuttable presumption
  of negligence).  The statute provides in relevant part,

 

    After having stopped [at an intersection], the driver shall yield
    the right of way to any vehicle which has entered the intersection
    from another highway or which is approaching so closely on said
    highway as to constitute an immediate hazard during the time when
    such driver is moving across or within the intersection.

  23 V.S.A. § 1048(b) (emphasis added).

       Plaintiff called Vermont State Police Sgt. Genova as an expert
  witness.  Plaintiff intended to elicit from Sgt. Genova his opinion that
  defendant entered the intersection when the Markowski vehicle was so close
  as to constitute an immediate hazard in violation of 23 V.S.A. § 1048(b). 
  Before the jury was called into the courtroom, the court held a hearing in
  connection with defendant's motion to preclude Sgt. Genova from offering an
  opinion as to her liability.  During the motion hearing, Sgt. Genova
  testified that he did not measure the Markowski vehicle's skid marks or do
  anything else that would allow him to estimate how fast Ms. Markowski's car
  was traveling as it approached the intersection.  After the hearing, the
  court granted defendant's motion because it determined that Sgt. Genova did
  not have an adequate factual basis for an opinion on liability.  The court
  made the same ruling during the witness's testimony after plaintiff's
  counsel again attempted to establish the foundation for the testimony. 
  Later, when the court denied plaintiff a new trial, it further explained
  that it excluded the opinion testimony because the speed of the vehicle was
  an essential fact in determining whether defendant violated the statute. 
  Because the sergeant did not have any knowledge of the speed of the
  Markowski vehicle, the court reasoned, he could not form an opinion as to
  whether the Markowski vehicle was going so fast that it created an
  immediate hazard to which defendant should have yielded.

       Plaintiff argues that the improper exclusion of the expert's testimony
  entitles him to a new trial.  We review evidentiary rulings and motions for
  a new trial for abuse of discretion.  Keus v. Brooks Drug, Inc., 163 Vt. 4,
  5, 652 A.2d 475, 478 (1994).  "Abuse of discretion requires a showing that
  the trial court has withheld its discretion entirely or that it was
  exercised for clearly untenable reasons or to a clearly untenable extent." 
  Vermont Nat'l Bank v. Clark, 156 Vt. 143, 145, 588 A.2d 621, 622 (1991). 
  The trial court must find an adequate foundation for the admission of
  expert testimony; a determination that the foundation is inadequate is
  discretionary.  See Reporter's Notes to V.R.E. 702; State v. Beshaw, 134
  Vt. 347, 349-50, 359 A.2d 654, 656 (1976).  An opinion cannot be based upon
  speculation.  Turgeon v. Schneider, 150 Vt. 268, 274, 553 A.2d 548, 552
  (1988).
   
       Violation of § 1048(b) requires that the approaching driver with the
  right of way either actually be in the intersection or approaching so
  closely as to constitute an immediate hazard when the car without the right
  of way enters the intersection.  The point of the trial court's ruling was
  that without some information about the speed of the Markowski vehicle, the
  expert had to speculate whether it was close enough to the intersection to
  cause an immediate hazard when defendant entered the intersection.  In
  fact, the witness testified that he had no idea how fast Ms. Markowski was
  driving, that he didn't measure the skid marks, and that there was no
  reliable basis for 

 

  determining where Ms. Markowski's car was when defendant pulled into the
  intersection.  It was within the discretion of the trial court to rule that
  the foundation for the proposed opinion was inadequate and the witness
  would have to speculate to conclude that defendant had violated the
  statute.

       Affirmed.



       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice