This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
W.G.O., as guardian for A.W.O.,
Mary Louise Crandall,
Filed April 3, 2001
Concurring in part, dissenting in part, Hanson, Judge
Mower County District Court
File No. CX981265
Stephen W. Cooper, Kathryn J. Cima, The Cooper Law Firm, Chtd., 800 Ceresota Building, 155 Fifth Ave. S., Minneapolis, MN 55401 (for respondent)
Ken D. Schueler, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Hanson, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
Respondent, W.G.O. as guardian for A.W.O., sued appellant, Mary Louise Crandall, for injuries resulting from a collision between Crandall’s automobile and A.W.O.’s bicycle. A jury found Crandall 80% at fault, A.W.O. 20% at fault, and awarded damages. Crandall appeals the district court’s denial of her motion for a new trial, motion for judgment notwithstanding the verdict (JNOV), and motion for determination of collateral sources. Because the district court did not abuse its discretion in refusing to instruct the jury on the “emergency rule” and because the admission of expert testimony, while erroneous, was not prejudicial, we affirm the denial of Crandall’s motions for a new trial and JNOV. Because Crandall’s motion for determination of collateral source offset benefits was properly before the district court but erroneously denied, we reverse and remand for determination of the amount of collateral source offset benefits to which Crandall is entitled.
On the afternoon of August 3, 1993, 12–year-old A.W.O. was injured when his bicycle was struck by an automobile driven by appellant Mary Louise Crandall. The accident occurred at the intersection of Oakland Place and Eighth Avenue NE in Austin.
Crandall was driving toward Austin on Interstate 90, returning from a luncheon where she had consumed two to four ounces of wine. She exited the highway onto an overpass, which crosses over the highway before merging into southbound traffic on Oakland Place. At trial, Crandall testified that she was “somewhat familiar” with the area, having driven through the intersection at least once a month during the summer of the preceding 20 or 30 years. She also testified that she knew there was a lake to the west of Oakland Place that was frequented by children.
Crandall testified that when she was at the top of the overpass, about 500 feet from the intersection, she noticed A.W.O. and another boy riding their bicycles east on Eighth Avenue NE toward the intersection. At the intersection, there is no “stop” or “yield” sign for vehicles traveling south on Oakland Place, but there is a stop sign for vehicles traveling east on Eighth Avenue NE. Crandall testified that when she first saw A.W.O. and his friend, they were 15 to 25 yards from the intersection, traveling at a moderate speed. She also testified that A.W.O. did not stop at the stop sign before entering the intersection, although the other boy did. Crandall, who was traveling 40 to 45 miles per hour in the left-hand lane of Oakland Place, testified that she did not apply her brakes until she saw A.W.O. enter the intersection. Nor did she swerve or honk her horn as A.W.O. crossed the right lane of Oakland Place and passed in front of her car. Crandall’s left front bumper struck the rear tire of A.W.O.’s bicycle; he was thrown from the bicycle and landed on the ground, breaking his leg. There were no skid marks at the scene.
In February 1994, two to three weeks after a cast was removed from A.W.O.’s leg, it broke again when another child bumped into him at a school dance. X-rays showed that the second break occurred in the same location as the first. According to the testimony of A.W.O.’s orthopedic surgeon, the second break occurred because the bone had not fully healed from the accident. A.W.O.’s leg was placed in a cast again. In July 1994, while he was trying to pedal a bicycle, his leg broke a third time. His orthopedic surgeon testified that the bone had weakened due to “disuse osteoporosis” as a result of its prolonged immobilization.
The jury returned its verdict on August 25, 1999, finding Crandall 80% at fault and A.W.O. 20% at fault. On September 3, Crandall moved for a new trial or JNOV and for determination of collateral sources. The district court’s order directing judgment pursuant to the jury’s verdict was filed on September 17 and judgment was entered that same day, although notice of filing was not served until September 20. On September 28, Crandall again moved for a new trial or JNOV and for determination of collateral sources. On September 29, the district court vacated the judgment in order to hear post-trial motions. After hearing the motions, the trial judge became ill. A second judge heard and denied the post-trial motions in May 2000.
On appeal from denial of a motion for a new trial, the verdict must stand unless “it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992). Because the district court has the discretion to grant a new trial, a reviewing court will not disturb the district court’s decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). JNOV is proper when a jury verdict has no reasonable support in fact or is contrary to the law. Diesin v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990). We review denial of a motion for JNOV de novo. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). Unless a reviewing court is able to determine that the evidence “is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict,” the district court’s order denying a motion for JNOV will stand. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975) (citation omitted).
1. Emergency Rule
Crandall argues that the district court erred in refusing to instruct the jury on the emergency rule. Generally, the decision of whether or not to give a requested jury instruction lies within the discretion of the district court. Sandborg v. Blue Earth County, 601 N.W.2d 192, 196 (Minn. App. 1999).
The emergency rule is an exception to the general rule that drivers owe a duty to exercise ordinary and reasonable care in the operation of their vehicles. Berg v. Nelson, 559 N.W.2d 722, 724 (Minn. App. 1997). The emergency rule provides:
A person confronted with an emergency through no negligence of his own who, in an attempt to avoid the danger, does not choose the best or safest way, is not negligent because of such choice unless the choice was so hazardous that a reasonable person would not have made it under like circumstances.
4 Minnesota Practice, CIVJIG 110 (1986). This instruction “should always be given where it is consistent with the theory of one of the parties to the action” and where the evidence submitted by that party “would sustain a finding that he had been confronted with a sudden peril or emergency and acted under its stress.” Gran v. Dasovic, 275 Minn. 415, 419, 147 N.W.2d 576, 579 (1966). But the party seeking to invoke the emergency rule must also “show that his own negligence did not create or contribute to the emergency situation.” Siegler v. Conner, 396 N.W.2d 612, 615 (Minn. App. 1986) (citation omitted). Thus, where a defendant is aware of the danger and, in the exercise of due care could avoid it before it became an emergency, but does not do so, he or she is not entitled to the emergency instruction. Compare Mathews v. Mills, 288 Minn. 16, 24-25, 178 N.W.2d 841, 846 (1970) (holding district court properly refused to give emergency instruction where evidence showed that defendant was not keeping proper lookout and that, when she came upon accident scene and became aware of the danger, she did not take proper steps to avoid collision with vehicles involved in accident), Daugherty v. May Bros. Co., 265 Minn. 310, 319, 121 N.W.2d 594, 600 (1963) (affirming refusal to give emergency instruction where defendant was negligent due to his improper speed, failure to keep proper lookout, and operation of unsafe equipment), and Kachman v. Blosberg, 251 Minn. 224, 235-36, 87 N.W.2d 687, 696 (1958) (affirming refusal to give emergency instruction where, if defendant had kept proper lookout and made timely application of his brakes to reduce his speed, he would not have found himself “overtaken by the emergency of which he now complains”), with Byrns v. St. Louis County, 295 N.W.2d 517, 519-20 (Minn. 1980) (holding district court should have given emergency instruction where there was evidence that car in which plaintiff was passenger was skidding prior to its impact with snowplow, and thus jury could find that skid was not result of driver’s negligence).
It is apparent that in this case the district court concluded that under Crandall’s own theory of the case, any claimed emergency was one of Crandall’s own creation. In support of that conclusion, the court cited Kachman, a case in which the district court’s refusal to give the emergency instruction was affirmed on appeal. In Kachman, the defendant was traveling 50 to 60 miles per hour when he saw a group of children about 300 feet away moving toward the side of the highway. Kachman, 251 Minn. at 227, 87 N.W.2d at 690. Upon seeing the children, he took his foot off the accelerator but did not apply the brake. Id. When one of the children entered the highway, the defendant, who by that time was traveling 45 to 47 miles per hour, applied his brake for the first time. Id. at 227, 87 N.W.2d at 690-91. In affirming the district court’s refusal to instruct the jury on the emergency rule, the supreme court noted that
where children are known or may reasonably be expected to be in the vicinity, a degree of vigilance commensurate with the greater hazard created by their presence or probable presence is required of a driver to measure up to the standard of what the law regards as ordinary care.
Id. at 232, 87 N.W.2d at 694. The Kachman court concluded that after first seeing the children at the edge of the highway, the defendant should have exercised greater caution. Thus, because he “brought the emergency upon himself” or “failed in the application of due care to avoid it,” he could not claim benefit of the emergency rule. Id. at 235, 87 N.W.2d at 696.
In its denial of a new trial, the court in this case reasoned:
[T]he party seeking to invoke the rule must show that his or her own negligence did not create the emergency situation in order for the rule to be applicable. Sieger v. Conner, 396 N.W.2d 612, 615 (Minn. Ct. App. 1986). In this case, the emergency situation was brought about, at least in part, by [Crandall’s] own negligence, and she was therefore not entitled to a jury instruction on the emergency rule. * * * [U]pon seeing the boys approaching the road upon which she was driving, Mrs. Crandall was required to drive with a greater degree of vigilance in order to be acting with reasonable care under the circumstances. When she failed to slow down upon seeing the boys and failed to exercise proper caution in approaching the intersection, [she] did not act with reasonable care under the circumstances.
We believe that the district court accurately assessed the circumstances under which this incident occurred, identified the initial negligence of Crandall which deprived her of the right to have the emergency instruction given, and, thus, properly refused to give that instruction.
Crandall argues that Toetschinger v. Ihnot, 312 Minn. 59, 250 N.W.2d 204 (1977), a case in which giving the emergency rule instruction was affirmed, controls here. We disagree and find Crandall’s reliance on that case is misplaced. In Toetschinger, the defendant noticed a group of children standing at an intersection about 80 to 100 feet away. Id. at 62, 250 N.W.2d at 207. Just as the defendant entered the intersection, one of the children ran in front of his car. Id. In determining that the district court did not err in instructing the jury on the emergency rule, the supreme court noted that
[i]n her effort to avoid colliding with the young boy running precipitately into the highway, she appears to have done everything that could reasonably be expected of her, under the circumstances.
Id. at 74, 250 N.W.2d. at 212.
Here, Crandall testified that from the top of the overpass, she had an unobstructed view of the intersection of Oakland Place and Eighth Avenue NE. She stated that she knew the area had a lake on the west side of Oakland Place and that children frequented the lake area; that she first observed two boys riding bicycles coming from the west on 8th Avenue NE and traveling toward the intersection when she was approximately 500 feet from that intersection; that the boys were between 45 and 75 feet from the intersection, traveling at a moderate speed; that after observing the bikes moving toward the intersection, she simply continued to let her car decelerate from its highway speed to a speed of 40 to 45 miles per hour. She also testified that she saw the other boy stop at the stop sign, but that she “thought” and “her memory was” that A.W.O. did not stop. She further testified that when she saw A.W.O. enter the intersection, she “just put [her] brakes on,” not sounding her horn or swerving as he first crossed the right lane of Oakland Place and then passed in front of her car, thinking “it would be a miss.”
Because Crandall’s own testimony showed that she was not driving with that degree of care reasonably required under the circumstances, she was not confronted with a sudden peril or emergency to which her own negligence did not contribute. Consequently, the district court did not err in refusing to instruct the jury on the emergency rule.
2. Evidentiary Rulings
Crandall argues that the district court erred in several of its evidentiary rulings. Evidentiary rulings are within the district court’s sound discretion; “[e]ntitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).
A. Insurance Coverage
Crandall argues that A.W.O.’s attorney improperly referred to Crandall’s insurance coverage. The relevant portion of the transcript reads:
Q: * * * these pictures depict the damage to your automobile, is that correct?
Q: And by the way, were you come [sic] compensated for that?
A: I don’t understand what you mean by “compensated.”
Q: Did your insurance company pay to have your car repaired?
At this point, Crandall’s attorney objected; his motion for mistrial was denied, with a caution to A.W.O.’s attorney to “Stay out of that” (an apparent reference to the topic of insurance).
Minnesota Rule of Evidence 411 provides that evidence that a person was or was not insured against liability “is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Crandall relies on Clark v. Johnson Bros. Constr., 370 N.W.2d 896 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985), to argue that a new trial is required. In Clark, defense counsel made repeated reference to the plaintiff’s insurance coverage, despite the district court’s admonitions not to do so. Id. at 898-99. In addition, the district court in Clark overruled an objection to the mention of insurance coverage and denied a request for a curative instruction. Id. Here, the district court sustained Crandall’s objection to the mention of insurance, the question was not answered, and the following curative instruction was given:
The jury is instructed that it does not matter for the purposes of this case whether or not anyone paid or didn’t pay any money for any car damage to Ms. Crandall’s vehicle, so just completely disregard that, please.
Mention of insurance was not so prejudicial as to require a new trial. See Odegard v. Connolly, 211 Minn. 342, 345-46, 1 N.W.2d 137, 139 (1941) (stating, “So long as the insurance is not featured or made the basis at the trial for an appeal to increase or decrease damages, the information would seem to be without prejudice.”).
B. Speed of Other Vehicles at Accident Site; ABS Brakes
With regard to speed, A.W.O.’s expert, Jerome Kaproth, testified that a “normally prudent driver” would travel through the accident intersection at approximately 32 miles per hour. He based this opinion on his measurement of the average speed of motorists passing through the intersection five years after the accident occurred. The district court admitted this testimony over Crandall’s relevancy objection.
Accident reconstruction evidence is relevant and may be admitted if it is sufficient to avoid speculation, otherwise gives a “reasonably complete and accurate reconstruction,” and, “more importantly,” assists the jury. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977) (quoting LeMieux v. Bishop, 296 Minn. 372, 378, 209 N.W.2d 379, 383 (1973)). In Bohach v. Thompson, a case not unlike this case, the expert did not begin to investigate or reconstruct the collision until three years after the accident. Bohach v. Thompson, 307 Minn. 332, 336, 239 N.W.2d 764, 767 (1976). He assumed the condition of the road when he tested it was substantially the same as when the accident occurred. He did not directly examine the automobiles involved in the accident, and thus in calculating their speed at impact was forced to rely on photographs showing the nature and extent of damage. Because the expert personally tested the highway in question and no evidence was presented at trial that the condition of the highway had changed in any significant way from the time of the accident, the court determined that the evidence was properly admitted. Id. at 337, 239 N.W.2d at 767. As the court in Bohach noted, deficiencies in the factual basis of the expert’s opinion went more to its weight than to its admissibility, especially as any alleged deficiencies were adequately brought to the jury’s attention on cross-examination. Id. But the court did note that the admission of this testimony approached “the outer limits of the trial court’s discretion.” Id. at 337-38, 239 N.W.2d at 767.
Our review of Kaproth’s testimony regarding speed convinces us that in this case the outer limits of the district court’s discretion were exceeded. The testimony was speculative, did not assist the jury, and was not based upon a reasonably complete and accurate reconstruction. It was error to admit this testimony.
We cannot conclude our analysis with a determination that the district court erred in admitting Kaproth’s testimony, however. We must consider whether that error was prejudicial. We conclude that it was not. Crandall herself testified that she saw the children from at least 500 feet away and that she knew the area was frequented by children. Regardless of the speed that Kaproth testified a normally prudent driver would travel through the intersection, the jury could conclude, based on Crandall’s own testimony, that she was negligent because she did not slow down or take other measures to prevent the incident when she became aware of the children’s presence.
Turning to the question of the skid marks, Crandall’s argument is persuasive. In his opening statement, Crandall’s attorney proposed that there would be testimony that Crandall’s car had antilock brakes, which he stated were designed not to “squeal.” During Kaproth’s testimony, A.W.O offered a photograph taken by Kaproth that showed skid marks made at the accident scene by him in a vehicle equipped with antilock brakes. The district court sustained Crandall’s objection to the photograph, but noted that because Kaproth had already testified about the skid marks, the photo did not matter; “the evidence [was] in.”
When Crandall’s expert later testified that a vehicle with antilock brakes would not leave skid marks, A.W.O. again offered Kaproth’s photograph; it was then admitted over Crandall’s objection.
We agree with Crandall that the district court erred both in admitting Kaproth’s testimony regarding the skid marks and in admitting the photograph.
The Minnesota Supreme Court has noted that
evidence of experiments conducted out of the presence of the jury, when they are made under conditions and circumstances substantially similar to those existing in the case at issue, rests in the sound discretion of the trial court.
Orwick v. Belshan, 304 Minn. 338, 347, 231 N.W.2d 90, 96 (1975). Here, Kaproth used a different model car and did not testify that the test was conducted under conditions and circumstances substantially similar to those existing when the accident occurred.
We conclude, however, that error in admitting the skid mark testimony and photograph was not prejudicial. The jury’s finding that Crandall was “negligent in the operation of the vehicle she was driving at the time of the accident” is supported by credible evidence other than any presented about skid marks, including Crandall’s own testimony that she did not apply her brakes until after she saw A.W.O. enter the intersection.
C. Consumption of Alcohol
Crandall argues that her consumption of a small amount of alcohol before the accident was not relevant. We disagree. When there is evidence a party was negligent, this presents an issue of causation and evidence of alcohol consumption may be probative on that issue. Mueller v. Sigmong, 486 N.W.2d 841 (Minn. App. 1992) (noting that where party’s drinking is shown to have contributed to cause of accident, its probative value is not outweighed by its prejudicial effect), review denied (Minn. Aug. 27, 1992); VanHercke v. Eastvold, 405 N.W.2d 902, 906 (Minn. App. 1987) (holding that party’s level of intoxication is relevant to issue of causation); Jonathan v. Kvaal, 403 N.W.2d 256, 262 (Minn. App. 1987) (holding same), review denied (Minn. May 20, 1987). Here, Crandall’s own expert admitted that consumption of alcohol could affect a driver’s reaction time and that, in preparing his accident reconstruction, he took into account the fact that Crandall had consumed a small amount of alcohol. Thus, the district court did not err in admitting evidence regarding her consumption of alcohol.
D. Subsequent Injuries; Medical Expenses; Special Damages
Crandall argues that A.W.O. failed to offer expert medical evidence as to the reasonableness or necessity of expenses incurred after February 10, 1994, for the second and third fractures of his leg, or evidence of the causal relationship of the later fractures to the accident. We agree with Crandall that expert medical evidence is usually necessary to establish the reasonable certainty of future medical expenses. Benson v. Johnson, 392 N.W.2d 890, 896 (Minn. App. 1986). Here, however, A.W.O. did present testimony from his orthopedic surgeon and medical records from which a layperson could reasonably conclude that the later fractures were related to the accident.
Also, Crandall’s argument that no foundation was established for the introduction of childcare, travel, and parking expenses must fail. The record contains testimony from A.W.O.’s mother as to out-of-pocket expenses related to her son’s treatment. The district court did not err in allowing these damages claims.
3. Collateral Sources
In its order denying post-trial motions, the district court stated:
[W.G.O.’s] no-fault insurance paid for $20,000 of his medical bills. The insurer has since “asserted” a subrogation claim in the amount of $18,088.59. * * * There should, therefore, be no collateral source reduction.
Crandall argues that the district court erred in denying the collateral source offset motion. A.W.O. argues that Crandall’s motion must fail because it was not filed in a timely manner. We note initially that the district court decided the collateral source issue on its merits, without objection as to timeliness by A.W.O. Generally, issues not raised before the district court cannot be considered for the first time on appeal. Thiele v. Stitch, 425 N.W.2d 354, 357 (Minn. 1996).
It may be argued that the ten-day period for filing of the collateral source offset motion is jurisdictional, and thus may be raised at any time. Our review of Minnesota statutes and caselaw is of assistance, but does not provide a definitive answer.
In Wertish v. Salvhus, this court reversed a collateral source award, reasoning that the motion for offset was not filed within the statutory ten-day period set forth in Minn. Stat. § 548.36. Wertish v. Salvhus, 555 N.W.2d 26 (Minn. App. 1996), rev’d on other grounds, 558 N.W.2d 258 (Minn. 1997). The supreme court reversed on other grounds, concluding that even if the ten-day time limit would have barred consideration of the motion by operation of Minn. R. Civ. P. 6.01, the motion was timely due to an interceding legal holiday. Wertish, 558 N.W.2d at 258. But while not explicitly rejecting this court’s analysis of the timeliness issue (this court had noted that a motion for collateral source determination must be made within ten days of the filing of the order for judgment; that “[a]ny other construction would make the 10-day period meaningless”), the supreme court observed that the general provisions of section 548.36 “suggest” the filing of a motion requesting a determination of collateral sources within ten days of the date of entry of the verdict. Id.
While this issue presents a close question, we conclude that Crandall is entitled to a collateral source offset. This conclusion is informed by several factors. Crandall initially filed a premature motion for collateral source offset. Thus, A.W.O. was at least on notice that a request for collateral source offset would be made. A.W.O. did not object to the district court’s consideration of the motion on its merits, and, arguably could be considered to have waived a timeliness objection. As Crandall notes, A.W.O. did not argue that a determination of collateral sources was inappropriate, but rather that any such sources were subject to a subrogation claim. Under the specific and peculiar circumstances of this case, we are reluctant to declare that missing the ten-day statutory provision by one day proves fatal to Crandall’s motion. She is entitled to whatever collateral source benefits are not the subject of subrogation claims. We reverse the denial of collateral source offset benefits, and remand this issue to the district court for a determination of the amount of benefits to which Crandall is entitled.
Affirmed in part, reversed in part, and remanded.
HANSON, Judge (concurring in part and dissenting in part)
I concur with the majority decision to reverse the district court’s denial of Crandall’s motion for a collateral source offset. I conclude that Crandall’s first motion, though filed before the entry of judgment on the jury verdict, was still before the court when judgment was entered and was sufficient to satisfy Minn. Stat. § 548.36, subd. 2.
However, I must respectfully dissent from the majority decision to affirm the denial of Crandall’s motion for a new trial. I would reverse, and grant a new trial on issues of liability, on two grounds. First, I believe it was prejudicial error to refuse to instruct the jury on the emergency rule. Second, I believe it was prejudicial error to admit the testimony of plaintiff’s expert witness on the speed of a “normally prudent person” and on the results of his experiment regarding skid marks from a vehicle with anti-lock brakes.
As to the emergency rule instruction, I am not comfortable making the decision on the basis of which supreme court case presents the most similar fact pattern. There are several factual elements to this case and they bear some similarity to the facts in different supreme court cases. For example, Zickrick v. Strathern, 211 Minn. 329, 1 N.W.2d 134 (1941), is similar in that the plaintiff unexpectedly entered the intersection in defendant’s path without stopping for the stop sign. The court applied the emergency rule, holding that the defendant had the right to assume the plaintiff would not disregard the stop sign. However, it is difficult to say whether the instant case is more similar to Zickrick because of the plaintiff’s failure to stop at a stop sign, or to Kachman because the plaintiff was a child, or not to Kachman because the child there was only five years old, or to Toetschinger because the child did not enter the intersection until the defendant was nearly there. The variables are numerous, and this comparative approach does not place any objective boundaries on, nor provide guidance for, the exercise of the district court’s discretion.
My reading of the case law suggests that there are clear objective boundaries on the district court’s discretion, though in some cases they are applied without explanation. Those boundaries are these: the district court must give the emergency instruction in all cases where the jury could find that the defendant’s pre-emergency conduct was not negligent, and the instruction should be refused only in those cases where the defendant’s pre-emergency conduct can be said to constitute negligence as a matter of law. It is not enough that there is some evidence from which the jury could find that the defendant’s pre-emergency conduct was negligent. The refusal to give the emergency instruction in such a case would require the district court to prejudge the fact question whether the defendant was negligent and would unfairly preclude the jury from considering the emergency rule even where the jury might have found that the defendant’s pre-emergency actions were not negligent.
This principle of law was clearly stated by the supreme court in Minder v. Peterson, 254 Minn. 82, 88, 93 N.W.2d 699, 705 (1958). There, the court approved the use of the emergency instruction, stating:
Where the evidence is such that the jury may find either way on the question of whether a litigant has created an emergency, it is proper to instruct the jury on the emergency rule with directions that it is to be applied only if the jury finds that the emergency was not created by the one who seeks to invoke the rule.
The same approach was taken by the supreme court in Emerson v. Eystad, 288 Minn. 401, 404, 181 N.W.2d 337, 338 (1970), where the court instructed on the emergency rule with special direction that it was to be applied only if the jury found that the emergency was not created by the negligence of the defendant. This approach is embodied in the emergency instruction recommended by the Minnesota Jury Instruction Guide, which essentially asks the jury to determine the defendant’s pre-emergency negligence:
A person confronted with an emergency through no negligence of her own who, in an attempt to avoid the danger, does not choose the best or safest way, is not negligent because of such choice unless the choice was so hazardous that a reasonable person would not have made it under like circumstances.
4 Minnesota Practice, CIVJIG 110 (1986) (emphasis added).
While not all of the several cases that have addressed the emergency instruction have referred specifically to this objective standard, the results reached are consistent with it. The cases that have affirmed the refusal to give the emergency instruction have concluded that the evidence of the negligence of defendant’s pre-emergency conduct was so clear as to be tantamount to negligence as a matter of law. Thus, in Thielbar v. Juentie, 291 Minn. 129, 134, 189 N.W.2d 493, 497 (1971), the court observed that “all of the evidence compels the conclusion that [defendant] made no attempt to avoid the collision”; in Matthews v. Mills, 288 Minn. 16, 25, 178 N.W.2d 841, 846 (1970), the court said the “evidence is clear” that defendant did not keep a proper lookout and did not take proper steps to avoid the collision; and in Kachman v. Bloberg, 251 Minn. 224, 235, 87 N.W.2d 687, 695 (1958), the court concluded that the testimony “strongly tends to establish” that the emergency was created by defendant’s excessive speed and failure to maintain a lookout.
Conversely, the cases affirming the decision of the district court to give the emergency instruction follow the approach set out in Minder. Thus, in Hughes v. Keller, 302 Minn. 8, 14, 224 N.W.2d 738, 741 (1974), the court gave the emergency instruction where the jury had conflicting evidence on the defendant’s pre-emergency negligence; in Gran v. Dasovic, 275 Minn. 415, 419, 147 N.W.2d 576, 579 (1966), the court gave the instruction because the evidence would sustain a finding that the defendant was not negligent in a sudden encounter of ice on the roadway; and in Daugherty v. May Bros. Co., 265 Minn. 310, 318, 121 N.W.2d 594, 599 (1963), the court, while refusing the instruction under its facts, quoted with approval the discussion from the annotation at 80 A.L.R.2d 5, 14, that the emergency instruction should be given when the evidence is “sufficient to support a finding * * * (2) that the perilous situation was not created or contributed to by the * * * tortious act or conduct of the [defendant].” (Emphasis added.)
Even more to the point, in Byrns v. St. Louis County, 295 N.W.2d 517 (Minn. 1980), the court reversed the refusal to give the emergency instruction, holding that it must be given where the “evidence would sustain a finding” that the pre-emergency conduct of the defendant was not negligent. Id. at 519 (citation omitted).
This brings us to the question whether the evidence in this case justified the conclusion that Crandall’s pre-emergency conduct was negligent as a matter of law, so as to justify denial of the emergency instruction. The district court did not specifically address this question and made no such determination, but simply referred to evidence from which the jury could find that Crandall was negligent. In fact, in concluding that Crandall “failed to slow down upon seeing the boys,” the district court did not view the evidence in the light most favorable to Crandall, as it was required to do for this purpose.
The majority opinion likewise stops short of saying that Crandall’s pre-emergency conduct was negligent as a matter of law. Because I do not believe that the evidence would not support such a conclusion, I cannot agree with the majority opinion.
To the facts summarized in the majority opinion, I would add that Crandall testified that she did slow down upon seeing the boys and was, in fact, decelerating from the time she exited the highway until the time she reached the intersection. Viewing her testimony most favorably, she reduced her speed from a high of 55 miles per hour to 40 miles per hour. As she observed the two boys approaching the intersection, she had the right to assume they would heed the stop sign and not enter in her path. She testified that she saw nothing to indicate they would not stop until she had reached the intersection and that, when she saw plaintiff enter, she immediately hit her brakes. She was almost able to stop before the collision. Her car came to a complete stop only 10-15 feet past the point of impact.
Under these facts, viewed in the light most favorable to Crandall, I cannot conclude that Crandall’s pre-emergency conduct was negligent as a matter of law. Because her negligence was a fact issue for the jury, I would rule that the district court was required to give the emergency instruction. Because that instruction was central to Crandall’s theory of the case, the refusal to give it was prejudicial error.
Regardless of our decision on the emergency rule, I would reverse as to liability based upon the admission of expert testimony that went well beyond the permissible scope of accident reconstruction. This testimony was especially prejudicial because plaintiff relied heavily upon it to support the two main arguments on defendant’s negligence—that she approached the intersection at an excessive speed and that she did not apply her brakes to avoid the collision.
While the scope of permissible accident reconstruction testimony has been expanded over the years, particularly following the adoption of Minn. R. Evid. 702, that scope remains considerably narrower than the testimony provided by the plaintiff’s expert, Kaproth, in this case. See State v. Dewey, 272 N.W.2d 355, 357 (Minn. 1978) (expanding the scope of permissible accident reconstruction testimony to include expert opinion on the point of impact and the speed of the vehicles); Polacec v. Voight, 385 N.W.2d 867, 870 (Minn. App. 1986) (admitting expert testimony on the point of impact and location of the vehicles), review denied (Minn. June 19, 1986); Sorensen v. Maski, 361 N.W.2d 498, 500 (Minn. App. 1985) (admitting expert testimony on the speed of vehicles before impact); and State v. Schaffer, 378 N.W.2d 115, 116 (Minn. App. 1985) (admitting expert testimony on the point of impact and location of the vehicles). See also Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (adhering to the Frye-Mack standard for the admission of expert testimony).
(1) The speed of a “normal prudent driver.”
Kaproth’s testimony that the “normal prudent driver” would maintain a speed of 32 miles per hour on this road was inadmissible for lack of foundation because it was based upon ten random observations made years after the date of accident. Cf. Orwick v. Belshan, 231 N.W.2d 90, 95 (Minn. 1975) (expert could not testify to what 25 other farmers knew about burned out bearings to prove the standard of care applicable to plaintiff farmer). More importantly, however, this was not even an appropriate subject for expert testimony. It does not represent the “scientific, technical or other specialized knowledge” contemplated under rule 702. The average speed at which ten unidentified persons happen to drive on this road at some other time under some other conditions is irrelevant to the standard of care required of Crandall under the precise conditions present on the date of the accident. Such expert testimony does not assist the jury, but improperly constructs an arbitrary standard of care that would supplant the legal standard.
The majority opinion agrees it was error to admit this testimony, but finds it not prejudicial. I disagree. Since Crandall was driving well within the speed limit, Kaproth’s construction of an arbitrary standard of care that required a lesser speed was bound to influence the jury’s assessment. This, of course, was exactly what plaintiff’s counsel intended when he fully exploited the “normal prudent driver” standard in closing argument:
So when opposing counsel says it’s preposterous that the average speed here is 32 miles per hour, you know what, that is the average speed there. It’s unrebutted testimony under oath and he didn’t bring anybody to contradict it. He didn’t even try really to contradict it. He did one of those things where you wait until closing argument. You don’t call a witness on something. You wait for closing argument and you just pretend something doesn’t matter. It matters.
* * * *
One of the important things about the 32 miles per hour is that it tells us what the folks in Austin think is the right speed for here * * * .
(2) The Anti-lock Brake Experiment
In an attempt to prove that Crandall had not applied her brakes, Kaproth testified to an experiment that he performed years after the accident with a different model car under undefined conditions. Kaproth testified that even though the car he used for his experiment had “anti-lock” brakes, his experiment produced skid marks. Based upon this experiment, and the absence of any mention or sign of skid marks in the police report or newspaper photos, Kaproth concluded that Crandall “had not locked up the brakes prior to the impact.” Later he opined that the accident would never have occurred if she had applied her brakes “just ever so slightly [sooner].”
The majority opinion agrees it was error to admit this testimony, but again finds it not prejudicial. I consider this testimony to be particularly critical because of plaintiff’s argument that, even after the emergency arose, Crandall did not act reasonably to avoid the collision because she did not apply her brakes. That argument had to rely largely on Kaproth’s testimony because Crandall testified that she did brake immediately upon seeing plaintiff enter the intersection and there were no other eyewitnesses.
For these reasons, I would reverse the denial of defendant’s motion for a new trial and order a new trial on liability.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In considering Crandall’ motion for a new trial or JNOV, the district court concluded that the picture was properly admitted solely for the purpose of impeaching Crandall’s expert. This conclusion appears contrary to the record. Kaproth testified regarding the skid marks before Crandall’s expert testified.
 Minn. Stat. § 548.36, subd. 2 (2000), requires the court to determine collateral sources that
have been paid for the benefit of the plaintiff or are otherwise available to the plaintiff as a result of losses, except those for which a subrogation right has been asserted.
Crandall does not dispute that a subrogation claim in the amount of $18,088.59 has been filed. In a letter to the court subsequent to issuance of the order, however, Crandall’s attorney, citing confusion, indicated that there were, in fact, two insurance payers in this case; that the no-fault carrier had paid $20,000 in PIP benefits, and the health care insurer had paid benefits also. The attorney indicated that the health care insurer had asserted the subrogation lien. The district court did not address the “confusion,” nor do we, except to express our confidence that resolution of the issue of timeliness of the collateral source offset motion will enable the parties and the district court to calculate the total amount of offset as a clerical matter.
 Similarly, the conclusion that the defendant’s pre-emergency conduct was negligent as a matter of law was assumed in Higman v. Ind. Sch. Dist. No. 37, 281 Minn. 413, 161 N.W.2d 696, 699 (1968) (defendant rear-ended a school bus in plain sight); Daugherty v. May Bros. Co., 265 Minn. 310, 121 N.W.2d 594 (1963) (defendant rear-ended bus); Lee v. Zaske, 213 Minn. 244, 6 N.W.2d 793 (1942) (driving with known faulty brakes); Zobel v. Boutelle, 184 Minn. 172, 238 N.W. 49 (1939) (passing another car on the shoulder of the road); and Ind v. Bailey, 198 Minn. 217, 269 N.W. 638 (1936) (driving at a high speed on an icy highway).
 The giving of the emergency rule instruction, with the proper qualification, causes no prejudice to the plaintiff because it leaves the issue of the defendant’s pre-emergency negligence in the hands of the jury. The plaintiff can argue that the jury should find pre-emergency negligence and, if so, need not apply the emergency rule.