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Brown v. Corbin11/6/1992
In this appeal of a wrongful death action, we consider whether the trial court properly admitted certain accident reconstruction evidence in the form of expert testimony and a photograph.
On August 15, 1990, Harold Lee Corbin was driving east on Route 638 in Orange County. As Corbin approached a curve in the road, another vehicle, operated by an unknown driver designated as John Doe, approached the same curve from the opposite direction. Doe's vehicle was partially in Corbin's lane of travel. Attempting to
avoid the Doe vehicle, Corbin turned right and the right wheels of his vehicle left the road surface and travelled along the grass and gravel shoulder. Then Corbin changed his path abruptly, swerved back across both lanes of traffic, and struck Donald Steven George Brown, Jr., who was standing with his brother on the opposite shoulder of the roadway. Donald died as a result of the injuries he suffered from the impact of the vehicle.
Debra L. Brown filed a motion for judgment in her capacity as administratrix of the estate of her son, Donald, against Harold Corbin and John Doe. At trial, Corbin offered no explanation for his vehicle's abrupt change in direction, but he testified that Doe's vehicle may have sideswiped his car just before his car veered sharply back across the road. Corbin also testified that he attempted to apply his brakes, although he admitted that he mistakenly may have accelerated instead. Corbin contended that his actions were an appropriate response to the sudden emergency created by Doe's vehicle's presence in his travel lane.
At the Conclusion of the trial, the jury returned verdicts for Brown against Doe in the amount of $503,378.80 and in favor of Corbin. The court entered final judgment in accordance with those verdicts on December 2, 1991.
Brown filed this appeal, assigning as error certain evidentiary rulings of the trial court. Specifically, Brown contends that the trial court erred when it admitted a photograph offered by Corbin without proper foundation. Additionally, Brown argues that the trial court erred when it allowed Corbin's expert to offer irrelevant and speculative testimony and opinions on factual issues properly within the province of the jury. We consider those assignments of error seriatim.
I.
Corbin offered a photograph purporting to recreate his perspective as he approached the accident scene on August 15, 1990. Corbin was asked by his counsel whether the photograph accurately depicted what he had seen as he approached the accident scene. Corbin responded, "Yes, sir. This is -- this is what -- somewhat similar to what I saw." The trial court admitted the photograph over
Brown's objection. Brown argues that Corbin failed to lay an adequate foundation on which to admit the photograph and that the trial court erred when it allowed the photograph into evidence. We agree.
A staged photograph purporting to depict the circumstances existing at the time of an event, e.g., Corbin's approach to the curve, is in the nature of a test or experiment which is offered for the same purpose. 2 Charles C. Scott, Photographic Evidence ยง 1101 (2d ed. 1969). Accordingly, the party who offers such evidence must show that the reconstruction or recreation is substantially similar, although not necessarily identical, to the actual event in all of its essential particulars. See Habers v. Madigan, 213 Va. 485, 487, 193 S.E.2d 653, 655 (1973). See also Mary Washington Hosp. v. Gibson,
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