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Onstad v. Payless ShoeSource8/24/2000
, 773 P.2d 1206. In Massman, the plaintiff offered to introduce testimony by an assistant fire chief as to the effect of the firefighting methods used on the containment of a fire at issue in the case. The trial court ruled that this testimony would constitute expert opinion which had not been disclosed prior to trial and excluded it. Affirming that ruling, this Court stated:
is opinion, about the most effective methods for combating such a fire, was based on that specialized, technical knowledge obtained from his fire training and work as an assistant fire chief. As such, the substance of his opinion constituted an expert opinion rather than a lay witness opinion. Massman, 237 Mont. at 241, 773 P.2d at 1210. Payless contends that the situation here is similar.
39 Our standard of review of a trial court's ruling on the admissibility of evidence is whether the court abused its discretion. Massman, 237 Mont. at 240, 773 P.2d at 1210. In the present case, the District Court allowed the police officers to answer the objected-to questions under Rule 701, M.R.Evid. That rule provides:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
40 This Court has condoned police officer testimony on matters as to which they have extensive experience and are properly qualified through training and experience. Hislop v. Cady (1993), 261 Mont. 243, 249, 862 P.2d 388, 392. In Hislop, the officer testified to his opinion about the cause of an accident, based upon his experience in accident investigation.
41 Onstad points out that with all three police officers, her counsel laid Rule 701 foundation that their opinions sprang from their work and experience as police officers. One officer testified that it is "common knowledge" that employee safety increases when two employees are present in a business instead of just one. The officers also opined that a Billings police officer would not advise a crime victim that Luplow's behavior in the first two incidents was merely that of a "harmless pervert."
42 The record reveals that the trial court responded to Payless's objections about the police officers' testimony in a careful and considered fashion, recognizing that Payless itself had raised the issues discussed in that testimony, in its opening statement. The court limited the testimony within the range allowed under Rule 701, M.R.Evid., regarding lay opinions. We hold that the court did not abuse its discretion in admitting the officers' testimony.
Issue 3
43 Did the court erroneously give conflicting instructions as to causation and superseding, intervening cause?
44 Payless does not assert that the District Court omitted to correctly instruct the jury on its theory of the case. Instead, while conceding that the instructions were correct statements of the law, Payless asserts that they are confusing when viewed together.
45 The court's Instruction No. 19 read:
More than one person may be liable for causing an injury . A defendant may not avoid liability by claiming that some other person whether or not named as a defendant in this action helped cause the injury.
Payless argues that the court erred in giving this instruction in a case also involving a defense of superseding, intervening cause. Payless asserts that the above instruction was inconsistent with Instruction Nos. 16 and 18, in which the jury was
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