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Lagola v. Thomas1/31/2005
ary ruling for abuse of discretion. Reversible error in the admission of evidence occurs only if there is an "error in the ruling" and "a substantial right of the party is affected."
Delaware Rule of Evidence 701 states:
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 and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702. "A lay witness may only express an opinion when the perception of the witness cannot be communicated accurately and fully without expressing it in terms of an opinion ..."
Patrolman Shepard's testimony that the "primary contributing circumstance" of the accident was that Lagola was driving "too fast" was not testimony based upon facts he perceived but, rather, was a conclusion based on his opinion as a layman. Here, the required foundation to admit such a lay opinion was not established. Because Patrolman Shepard did not testify to the facts he perceived as a result of his investigation of the accident, his lay opinion testimony was inadmissible under Delaware Rule of Evidence 701. Our holding in this case is consistent with Alexander v. Cahill, in which we held that a state trooper's testimony attributing the cause of an automobile accident to the defendant motorists was an inadmissible lay opinion. Lagola argues that "primary contributing circumstance" and "proximate cause" are entirely different concepts. She points to the definitional differences between the terms cause and circumstance. "Cause" is defined as "something that produces an effect or result," whereas "circumstance" is defined as "an accompanying or accessory fact, event, or condition, such as a piece of evidence that indicates the probability of an event."
Lagola maintains that this difference in definitions distinguishes this case from Alexander. She argues that this case is much more similar to Laws v. Webb. In Laws, we concluded that a trial judge did not abuse his discretion where the officer "did not testify that [the defendant motorist's] improper crossing was the legal or proximate 'cause' of the accident for purposes of negligence action, but rather, the officer testified that at the time of the accident, he merely filled in the 'primary cause' box on his report with the phrase 'improper crossing.'"
We do not find Lagola's argument persuasive, nor do we believe that a reasonable juror would appreciate the distinction that Lagola strives to make. We conclude that there is little to distinguish between the terms "primary cause" and "primary contributing circumstance." Both pertain to what primarily brought about the accident. And both involve matters of opinion. We therefore expressly overrule Laws v. Webb to the extent it is inconsistent with our holding in Alexander v. Cahill.
Applying the teachings of Alexander, it is undisputed here that Patrolman Shepard was not qualified in accident reconstruction. His testimony that Lagola's speed was the "primary contributing circumstance" of the accident went to the heart of the case in which the testimony of the parties was in conflict. Given the conflicting testimony on road conditions, we find that the admission of this opinion testimony of the investigating police officer jeopardized Lagola's substantial right to a fair trial. We therefore conclude that Lagola is entitled to a new trial.
B.
The trial judge's questioning of three defense witnesses
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