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Malinowski v. United Parcel Service3/11/2002
in the context of the trial. The trial justice's opinion was that to prove that the "missing" gear was essential to the accuracy determination, and the foundation, plaintiff may need to provide expert testimony to support her theory. The plaintiff argued that because the original defective gear was missing she could not possibly establish the accuracy of the speed recording.
"It is well established that 'the admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of that discretion is apparent.'" ADP Marshall, Inc. v. Brown University, 784 A.2d 309, 314 (R.I. 2001) (quoting Bourdon's, Inc. v. Ecin Industries, Inc., 704 A.2d 747, 758 (R.I. 1997)). "Furthermore, 'this standard is applicable to a trial justice's determinations with respect to both the relevancy of proffered evidence and the adequacy of the foundation laid for its admission.'" Id. (quoting Bourdon's, Inc., 704 A.2d at 758).
In an attempt to have the trial justice reconsider the tachograph speed evidence, plaintiff's attorney indicated to the court that he intended to elicit the information from Kershaw. At that time, the trial justice ruled that the speed recording from the tachograph was inadmissible for lack of adequate foundation and accompanying expert testimony to ensure the accuracy of the recording. In doing so, the trial justice fairly noted that all the evidence pointed toward the inaccuracy of the tachograph recording. Further, plaintiff did not produce an expert to testify in support of her theory that the "missing" gear in question would be necessary to test the accuracy of the tachograph. Lastly, the trial justice noted that although the trial justice in the first trial had indeed admitted such evidence, she was entitled to exercise her own independent discretion in the second trial. The plaintiff was still entitled to discuss the acceleration pattern of the truck, including the clear absence of deceleration, which arguably, was even more important to her case. We agree.
In this case, there is no evidence that the trial justice abused her discretion by finding that Kershaw could not render a technical opinion absent qualification as an expert and that plaintiff had failed to lay an adequate foundation. A technical opinion about the operation of the tachograph and the impact of any alleged defect may indeed have been better introduced by an expert pursuant to Rule 702 of the Rhode Island Rules of Evidence. See ADP Marshall, Inc., 784 A.2d at 315; see also 92 Dick L. Rev. at 486 (discussing predominant view that in order to establish foundation for tachograph evidence, accuracy must be established).
Further, the jury heard the most compelling information revealed by the tachograph - - that Hogan had failed to decelerate upon seeing Michael and his friends, and in fact, had accelerated continuously from the previous traffic signal. Finally, speed may not have been a factor in this accident because it was undisputed that Michael was struck by the rear wheels of the truck and that after the accident he was lying approximately fifty-three feet from the rear of the trailer. Accordingly, we find no error in the exclusion of the tachograph speed recording.
III. Spoliation Instruction
The plaintiff next argues that the trial justice erred by failing to issue a jury instruction on the doctrine of spoliation. Under the doctrine of spoliation, "the deliberate or negligent destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence was unfavorable to that party." State v. Barnes, 777 A.2d 140, 145 (R.I. 2001) (quot
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