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Getchell v. Lodge2/28/2003
c on purpose under the circumstances of this case. However, Lodge testified that she did not steer into the other lane.
Q: But you deny that you attempted to turn, correct?
A: Yes.
Q: Okay. And when asked in your deposition if you swerved to the right or to the left, you said: I did not turn and I did not swerve to the right or left, true?
A: That's what I said, yes.
Q: And you maintain that today?
A: Yes, mmm-hmm.
James Stirling, Lodge's accident reconstruction expert, testified similarly:
Q: Mr. Lewis testified that tire marks in the trooper photos indicate that Ms. Lodge's vehicle was sideslipping and rotating as it crossed the center line in the roadway. Do you agree with that position?
A: Yes I do.
Q: What's the significance of that information?
A: The rotation started in her lane.
Q: Are you aware of any evidence in this case that Ms. Lodge intended to steer into or swerve into the oncoming lane of traffic?
A: No, I'm not.
In addition to the evidence that Lodge did not steer into the oncoming lane of traffic, Lodge testified that she slammed on her brakes to avoid a moose in her lane. According to Lodge, her brakes locked and she skidded into Getchell's lane. Reasonable jurors could have concluded that the presence of the moose in the road excused Lodge's skid into the oncoming lane of traffic. Skidding to avoid a moose is the type of excuse contemplated by § 288A of the Restatement (Second) of Torts, adopted by this court in Ferrell v. Baxter. Comment h of this section aptly describes this situation:
Emergency. As in other cases of negligence (see § 296), the violation of an enactment or regulation will ordinarily be excused when the actor is confronted with an emergency which is not caused by his own misconduct.
It is plausible that the jury concluded that the moose created an emergency situation for Lodge and that they therefore excused the unfortunate consequences of her attempt to avoid the moose.
The jury also heard other evidence from which it could have reasonably concluded that Lodge was not negligent. Lodge points out that she had very little time to react after she saw the moose in the road. Lodge's accident reconstruction expert, James Stirling, expressed his opinion that Lodge had approximately "three-point-some seconds before" she would have collided with the moose. According to Stirling, Lodge's perception of the danger, before she took any evasive action, would have consumed one-and-a-quarter to one-and-a-half seconds. Thus, Lodge argues, she had one-and-a-half seconds at most to slow the car down and correct the slide. Stirling testified that " iven the surface and how slick it was, and given the speed of 45 miles an hour, [Lodge's attempts to correct her car's rotation] would have had to have been almost instantaneous to stop. . . . I would think she would have to perform higher than the average driver to do it." Based upon this testimony, reasonable jurors could have concluded that "Lodge was unable after reasonable care to comply with [13 AAC 02.085 and 13 AAC 02.050]." The trial court did not abuse its discretion in denying Getchell's motions for JNOV or new trial.
B. The Trial Court Did Not Err in Admitting Trooper Leichliter's Testimony.
1. Trooper Leichliter testified as a hybrid witness.
Trooper Leichliter responded to the accident in this case and wrote an accident report. Before trial, Getchell objected to Trooper Leichliter's proposed testimony about causation and fault. She argued in a motion in limi
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