This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-433

William F. Henry,

Respondent,

vs.

Barbara Mae Joseph, et al.,

Appellants,

State of Minnesota,

Respondent.

Filed October 22, 1996

Reversed in part, affirmed in part, and remanded

Thoreen, Judge

[*]

Chisago County District Court

File No. C5-94-672

John M. Steele, 418 Groveland Avenue, Minneapolis, MN 55403 (for Respondent William Henry)

Richard L. Pemberton, W.D. Flaskamp, Leatha G. Wolter, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellants)

Byron M. Peterson, Foster, Waldeck & Lind, 2300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent State of Minnesota)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Thoreen, Judge.

U N P U B L I S H E D O P I N I O N

THOREEN, Judge

The Josephs appeal from the judgment and from the trial court's order denying their motions for amended judgment, JNOV, and a new trial, arguing that they are entitled to a new trial because the trial court excluded (1) evidence regarding a "sudden brake failure" just before the accident, and (2) evidence regarding other accidents occurring in the same area around the same time as this accident. We affirm in part, reverse in part, and remand.

FACTS

On the evening of November 27, 1992, appellant Barbara Joseph was driving north on 35W near Stacy, Minnesota. Her husband, appellant James Joseph, and her children were also in the van. She had driven approximately 150 miles that day. She was driving in the right lane, but when she saw a state trooper's lights (it was an unmarked car) on the righthand side of the road in the distance (he had pulled over two speeding cars), she got in the left lane. As she approached the spot where the state trooper (respondent William Henry) was, a van that was in front of her slowed down suddenly. Barbara Joseph turned to get in the right lane and lost control of the van, which spun around and hit Officer Henry, injuring him seriously. It is disputed whether she was using her brakes shortly before she hit Officer Henry.

A Minnesota State Trooper, Timothy Murphy, was called to the scene to investigate the accident. Murphy drove the van at the scene and did some "skid tests." When he locked up the brakes, he felt a slight pull to the right. Murphy issued two tickets to the Josephs--for careless driving and for defective equipment. Murphy had the van impounded so that it could be inspected.

The inspection was done by Mark, Thaddeus, and Dean Oknich of Harold's Towing and Recovery in Forest Lake. The Oknichs prepared a report indicating that "the right front caliper was frozen, thus causing excessive wheel drag. When the brakes were applied, the wheel would lock up, which would cause the vehicle to spin under certain conditions."

Trooper Murphy made a "Major Crash Investigation Team" report on the accident. In the report, he noted that he did "test skids" with the vehicle at the scene of the accident, and "As I stepped hard on the brake the van began to rotate clockwise and as the driver I felt as if the brakes were not functioning properly, I repeated this test two additional times with the same results." He also referred to the Oknichs' report.

In October of 1993, Henry sued the Josephs, alleging that Barbara Joseph's negligent driving caused his injuries.

The trial court held a pretrial hearing on April 27, 1995 (discovery was to have been completed on April 17). The trial was originally scheduled for May 15, 1995, but was postponed.

The trial began on October 30. On November 9, 1995, the jury returned a verdict, finding Barbara Joseph negligent and awarding $3,031,453.45. The damage award was broken down as follows: (1) past pain, disability, etc.--$1,000,000; (2) future pain, disability, etc.--$1,000,000; (3) loss of earnings--$105,000; (4) loss of earning capacity--$675,000; (5) past medical expenses--$151,453.45; and (6) future medical expenses--$100,000. The trial court denied appellants' motions for amended judgment, JNOV, and a new trial. This appeal followed.

D E C I S I O N

The decision to admit or exclude evidence rests within the broad discretion of the trial court. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion. Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990). The trial judge's decision will not be reversed absent a clear abuse of discretion. Id.

1. Evidence Regarding Brake Failure

As a defense, appellants sought to prove that the van's brakes unexpectedly failed just moments before the accident, causing the van to spin. Appellants claim that the trial court erred in excluding certain testimony relating to their "sudden brake failure" defense on the grounds of relevance and foundation.

A driver defendant is not liable as a matter of law for damages caused when her brakes unexpectedly fail through no fault of her own. See Sabasko v. Fletcher, 359 N.W.2d 339, 342 (Minn. App. 1984).

Respondent state argues that, without testimony from Barbara Joseph that she was using her brakes when she lost control of the van, there was insufficient foundation for an expert to testify that the brakes contributed to the accident.

Our review of the record reveals that Barbara Joseph did testify that she was using her brakes when she lost control of the van. On cross-examination, she testified:

Q I'm talking about the car going out of control, the back swung in a clockwise direction so that it was 90 degrees from where you were going?

A Yes.

Q And at that point you were braking and slowing down?

MR. STEELE: Objection. Leading and suggestive.

Q (By Mr. Flaskamp, continuing) Were you braking and slowing down?

A Yes, I was braking and slowing down attempting to make the lane change.

THE COURT: Now, I will rule. It's true, it was leading, but I will overrule the objection. The answer will stand.

(Emphasis added.) Barbara Joseph was also asked to read from her deposition testimony:

Q And would you read the question and answer that you gave under oath? * * *

THE WITNESS: The question was: "How did you get then from the left lane over to the shoulder to hit the trooper?" And the answer was: "Coming upon the vehicle, like I say, coming upon the vehicle's lights, I saw the van in the front which decelerated, and it appeared that he was going to stop, which I thought was a little unique, but I thought if he chooses to do that, I could change lanes, and I continued on my way. I had no idea why he would do such a thing, but in making the change, I continued to brake. And as I was braking and changing lanes, the car made a 180 degree turn.

(Emphasis added.)

Respondent Henry claims that not only must the driver testify that she was using the brakes at the time she lost control, she must also complain of such a brake failure. In every case that respondents cite, the brake failure was a sudden, complete brake failure. Appellants do not claim that there was a sudden, complete brake failure in this case. They argue that there are different kinds of brake failure, some of which a driver would notice immediately before an accident, and other kinds a driver would not necessarily notice, and that this case is the latter kind. We are not prepared to hold, as respondents urge us to, that the driver's failure to complain of brake failure is an absolute bar to such a defense in all cases.

Respondent Henry claims that because Barbara Joseph testified that she lost control as soon as she turned the steering wheel, her loss of control could not have been caused by her brakes. However, she testified that she braked before she turned to go into the right lane.

Respondent Henry claims that "[d]efendant was provoked with questions about whether she was braking in the left lane for over a mile prior to the scene and whether she was actually braking when she turned to go into the right lane" and that "[w]hether she was or wasn't braking while in the left lane wasn't the point" because the point of the examination was to give her a chance to complain of some sensation of abnormality with her brakes. However, if Joseph was using her brakes while or immediately before she lost control, that is the point. And she did testify to that effect.

(a) The Oknichs' Testimony

Appellants argue that the trial court erred in excluding the Oknichs' testimony on the basis of untimely disclosure. The Oknichs were in fact disclosed as witnesses, though not as expert witnesses. Appellants also argue that the trial court should not have excluded their testimony because respondents were not prejudiced.

Because the trial date was postponed, the timeliness claim had less weight. In addition, it is clear that respondents knew about the Oknichs for a long time. In fact, they were hired by the state, and their report was used as part of Murphy's accident report. Thus, we conclude that the trial court erred in excluding the Oknichs' testimony for this reason.

We also conclude that the trial court erred in excluding the Oknichs' testimony on the grounds of foundation and relevance. Barbara Joseph testified that she was using her brakes when the accident occurred. The Oknichs stated in their report that the brakes were defective and that, in their opinion, brake failure "contributed to the accident."

Trooper Murphy stated in the "Major Crash Investigation Team" report on the accident that:

As I stepped hard on the brake the van began to rotate clockwise and as the driver I felt as if the brakes were not functioning properly, I repeated this test two additional times with the same results. It was decided at this time to place a hold on the van and inspect the brakes the following day. The brakes were inspected the following day at Harold's towing in Forest Lake and several defects were noted.

We conclude that the trial court clearly abused its discretion in excluding the Oknichs' testimony.

(b) Cross-examination of Trooper Murphy

It is also our opinion that the trial court erred in precluding the cross-examination of Murphy relative to his findings and opinion about the condition of the brakes.

(c) David Daubert's Testimony

Appellants claim that the trial court erred in excluding Daubert's testimony. Because the trial court determined that Daubert was not qualified to testify regarding brake failure because his "credentials consist of an engineering degree in signage" and "defendant produced no evidence to englighten this court as to pertinent qualifications," we find no error in this ruling. Thus, we do not address timeliness issues regarding Daubert's testimony.

2. Evidence of Other Accidents

In view of Barbara Joseph's testimony that she was not distracted by any other activities just prior to the accident, the trial court did not err in precluding evidence offered by appellants regarding other accidents at the scene.

3. Ray Knight

Appellants argue that the trial court erred by suppressing the foundational basis for Ray Knight to testify.

The trial court noted that "I have no doubt that [Knight's] well-qualified" and that the problem was foundation. To the extent that the foundation for Knight's opinion depended on the Oknichs' report, the trial court erred. To the extent that Knight's testimony depended on evidence of other accidents, the trial court was correct.

We reverse in part, affirm in part, and remand for a new trial solely on the issue of liability.

Reversed in part, affirmed in part, and remanded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.