 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Paulos v. Covenant Transport2/20/2004
ly appreciate how variations in the surrounding conditions, as between the original occurrence and the staged event, can alter the outcome." Id. at 264. "In such cases the solution of many courts . . . has been to call for substantial similarity in conditions, or to stress the great discretion of the trial judge to exclude the evidence where similarity is not shown, or both." Id. Paulos claims that the trial court erred when it refused to do just that--either require substantial similarity in conditions, or exclude Strength's elapsed time estimate.
At trial, Strength gave arguably contradictory responses when asked to recall how much time elapsed between the inception of the Mucha pass and the accident. In his first response, he said, "It was like a flash. It was an instant. I mean, it was quick. It wasn't a lot of time." When he gave his second response, he explained that it was "not even a minute. I would say less, 30 seconds, 45 seconds. It wasn't very long." These responses warranted clarification of the issue and it was perfectly within the trial court's discretion to allow Strength to explain, in a way meaningful to the jury, his inconsistent statements. See Perkins v. Fit-Well Artificial Limb Co., 30 Utah 2d 151, 514 P.2d 811, 813 (1973) ("The trial judge is allowed a wide discretion in his control over the examination of witnesses--lay and expert alike. Unless he abuses that discretion and prevents the witness from answering a proper question on a material matter, he should not be reversed.").
Here, substantial similarity of conditions was not required because Strength's estimate did not purport to demonstrate the actual occurrence of the event depicted. He was simply asked to visualize the occurrence of the event in his mind and attach an amount of time to that event. "The issue for us is whether the demonstration is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions." Fusco, 11 F.3d at 264. Strength's personal visualization of the accident while sitting on the witness stand was hardly "sufficiently close in appearance to the original accident" to "give rise to the special requirement to show similar conditions." Id.
III. Jury Instructions
Paulos claims the trial court committed reversible error in giving instruction number sixteen, which advised the jury of the settlement that was reached between Paulos and the Muchas, because it was a comment on the evidence as well as an incorrect statement of fact and law. Paulos objects to the following language from instruction sixteen:
You may, however, consider the settlement agreement when you weigh the believability of the testimony presented. Since the plaintiff and the Muchas have settled, they are no longer adversary parties in this lawsuit. The plaintiff now has a financial interest in showing that Covenant Transport is entirely to blame for the accident. Also, the Muchas now have no reason to dispute the amount of damages the plaintiff claims.
In Slusher v. Ospital, 777 P.2d 437 (Utah 1989), the Utah Supreme Court held that, where a settlement agreement is entered into by an injured plaintiff and one or more, but not all, defendants, "the parties must promptly inform the court and the other parties to the action of the existence of the agreement and of its terms." Id. at 444. Additionally, Slusher held that
here the action is tried by a jury, the court shall, upon motion of a party, disclose the existence and basic content of the agreement to the jury unless the court finds that, on facts particular to the case, su
Page 1 2 3 4 5 6 7 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|