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Gorostieta v. Parkinson12/15/2000
indicates that the vehicle operator's duty supersedes or sets aside the duty of a child pedestrian and the jury was therefore misled in finding that Dalinda was 35% at fault for her injuries.
The Gorostietas misinterpret the plain meaning of the last sentence of the statute. The statute sets forth the duty a vehicle operator has to pedestrians. The last sentence of section 41-6-80 states that the section sets aside any conflicting provision of the traffic rules and regulations found in chapter 6 of the annotated Utah Code or of a local ordinance. The plain language of the section clearly states that if either a local ordinance or a state statute under chapter 6 creates a duty for a vehicle operator that is any more or less than that stated in this section (which, inter alia, is to exercise the appropriate precaution upon observing any child), that ordinance or statute is set aside. See Utah Code Ann. § 41-6-80.
The jury was given several instructions on the various duties of a driver and also on those of a pedestrian. Taken in context, with the proper meaning given to section 41-6-80, the omission of the last sentence from the jury instruction did not change the essential meaning of the statute. Therefore, there was no error.
CONCLUSION
We affirm the trial court's refusal to allow Dalinda's mother to testify as to the amounts of the medical bills she incurred for Dalinda's care. In addition, we affirm the trial court's ruling regarding jury instructions.
Justice Durrant and Justice Wilkins concur in Associate Chief Justice Russon's opinion.
DURHAM, Justice, dissenting:
I dissent from that portion of the majority opinion construing the best evidence rule, and from its conclusion that Ms. Gorostieta was to be asked to read the contents of the medical bills into evidence.
First, the trial transcript shows that plaintiffs' counsel told the court that "as far as the bills would go is that I would hand, you know, I would have her refresh her memory from the bills as to the amounts." There was no intent or request to permit Marie Gorostieta to read their contents.
Second, the best evidence rule applies only when a party is seeking to prove "the content of a writing." Here, plaintiffs were seeking to prove the amount actually expended for treatment of serious injuries, not the content of the bills received from providers. The majority correctly cites 29A Am. Jur. 2d Evidence § 1049 (1994) for the proposition that " he underlying purpose of the best evidence rule is the prevention of fraud or mistake in proof of the contents of a writing." However, it does not cite the next principle summarized in § 1049: "Accordingly, the rule does not preclude a witness from testifying to facts recorded in a writing from his or her personal knowledge." The annotations to that section include numerous state and federal cases, one of which amply illustrates the difference between proving what a writing says and proof of an independent fact of which a witness has personal knowledge. In R & R Associates, Inc. v. Visual Scene, Inc., 726 F.2d 36 (1st Cir. 1984), the court reviewed the testimony of a corporate executive about the cost to his company of defective merchandise obtained from the defendant:
hen President Smith testified that it cost plaintiff $31,850.19 to procure the allegedly defective merchandise, he was in no way attempting `to prove the contents of a writing.' Rather, he was attempting by his own direct testimony to prove a particular fact: what it cost R & R to procure the merchandise. To be sure, plaintiff had in its possession written documentation that presumably suppo
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