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Condon v. Heritage Mutual Insurance Company11/5/2002
. Heritage Mutual Insurance Company (Heritage) appeals from the judgment entered after a jury awarded Deborah and John Condon $262,714.18 for the wrongful death of their daughter, Ashley Condon, who was struck and killed by an automobile operated by Kyle Fueger. Heritage contends: (1) no credible evidence supported the jury's finding that Fueger's negligence was a substantial factor in Ashley's death; (2) expert testimony was necessary to establish that Fueger's negligence was a substantial factor in Ashley's death; (3) the trial court erroneously admitted testimony of Officer Riederer regarding the statistical relationship between impact speed and the severity of injury; and (4) the trial court erroneously admitted the deposition testimony of a defense expert witness, contrary to Wis. Stat. ยง 804.07 (1999-2000).
. We conclude that sufficient evidence established that Fueger's negligence as to speed and lookout was a substantial factor in causing Ashley's death. Additionally, expert testimony was not necessary to establish this causal connection, because the presence of Fueger's negligence was reasonably comprehensible to the jury, even though it may have involved the drawing of inferences. Further, although the trial court erroneously admitted the statistical testimony of Officer Riederer, because Heritage has failed to establish that the outcome would have been different absent this testimony, we conclude that the error was harmless. Finally, we conclude that the trial court did not err in admitting the deposition testimony of the defense expert. Accordingly, the trial court is affirmed.
I. Background.
. On July 19, 1998, at 1:00 p.m., Ashley, an eight-year-old girl, was riding her bicycle down her neighbor's driveway. Her neighbor's house was located on Spring Drive in Brookfield, Wisconsin. As Ashley rode down the driveway heading from east to west, Fueger, a seventeen-year-old boy, was driving his parents' automobile northbound on Spring Drive. As Ashley emerged from the driveway and entered the intersection, she was struck and killed by Fueger's vehicle.
. The speed limit on Spring Drive in the neighborhood of the accident was twenty-five miles per hour. Fueger told police who were investigating the accident that he was traveling at approximately thirty miles per hour. He also told police that he never saw Ashley on her bicycle prior to the collision, and that he did not apply his brakes until immediately after impact.
. One of the investigating officers, Frank Riederer, conducted an accident investigation reconstruction. Initially, Officer Riederer inspected Fueger's vehicle and Ashley's bicycle. He determined that the point of impact between the automobile and the bicycle was approximately two feet from the left corner of the front bumper - meaning that Ashley had nearly cleared the northbound lane of Spring Drive before being struck. As part of his inspection, he also turned the key in the ignition of the vehicle and discovered that the " ir conditioning was up and the radio was on loud."
. Officer Riederer later determined and testified that Fueger was likely traveling between 31.5 and 37.7 miles per hour at the point of impact. While noting that there was a sight obstruction from trees and bushes in Fueger's sightline, Officer Riederer was able to calculate that the distance between the point at which Ashley became visible to Fueger from behind the last obstruction to the point of impact was 14.58 feet. Based on this calculation and the speed of the vehicle, Officer Riederer computed that Ashley would have been visible to Fueger for approximately 1.4 to 2.9 seconds.
. Officer Riederer also testified about
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