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Onstad v. Payless ShoeSource8/24/2000
the evidence clearly indicated that Onstad's trauma arose from the mental stress of contending with Luplow's attack. Payless simply did not produce any evidence that Onstad's mental condition is a result of a physical injury to her during the attack.
32 In the resulting absence of any factual dispute, we conclude that Payless's exclusivity defense failed as a matter of law, and we hold that the District Court was correct in rejecting that defense. The workers' compensation exclusivity clause does not bar this action, because Onstad's injury is not compensable under the present workers' compensation system in Montana. Because we have so concluded, we do not further consider Payless's third allegation of error on this subject-that the court erred in rejecting Payless's offered jury instruction asking the jury to find whether Onstad's posttraumatic stress resulted from a physical stimulus.
Issue 2
33 Did the court erroneously allow police officers to give expert opinion testimony when they were never qualified as experts?
34 In his opening statement, Payless's counsel outlined the facts regarding the two previous incidents in which Luplow had exposed himself to another employee in Billings Payless stores. Although both incidents were reported to the police, Luplow was neither identified as the culprit nor apprehended either time.
35 The attorney for Payless told the jury the evidence would show that after the first time Luplow exposed himself in a Billings mall Payless store in February 1996, the investigating police officer told the victim, "This guy's a harmless pervert. He is in this for the thrill. He is not going to hurt you." Later in his opening statement, counsel repeated, "we do know the police think this is somebody that was not going to hurt her." Counsel then discussed Luplow's second indecent exposure incident with the same Payless employee, in May of 1997, at the store in which Onstad was later assaulted. In that incident, Luplow remained in the store masturbating while his victim was on the telephone calling the police. Payless's attorney again characterized the police response as, "He is not going to hurt you. He is basically a harmless pervert."
36 In her case-in-chief, Onstad presented testimony by three Billings police officers who investigated the assault. As part of her examination of those officers, Onstad asked questions in two subject areas challenged by Payless: the efficacy of security precautions taken in the Payless store where Onstad worked, and the predictability of an escalation in severity of a sexual offender's actions. Payless objected to those questions on grounds that they would elicit inadmissible lay testimony, that such evidence was irrelevant, and that it was "way beyond lay opinion." Onstad justified the questions as responses to the above remarks made in Payless's opening statement.
37 Payless cites Rocky Mountain Enterprises, Inc. v. Pierce Flooring (1997), 286 Mont. 282, 951 P.2d 1326, for the general proposition that lay witnesses may not give opinions on topics requiring expert testimony.
Payless's position is that the issues of adequate store security and the escalation of severity in a sexual deviate's actions demanded expert opinion. Payless asserts that admission of the objected-to testimony was reversible error, citing the requirement under Rule 26(b)(4)(A)(i), M.R.Civ.P., that parties must disclose the names and testimony of intended expert witnesses prior to trial. Onstad did not identify the police officers as expert witnesses prior to trial.
38 In further support of its position, Payless cites Massman v. City of Helena (1989), 237 Mont. 234
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