KERRY S. MAIER and MARTIN H. RAUSCH, Plaintiffs and Appellants,
ERIN WILSON, Defendant and Appellee.
Submitted on Briefs: August 30, 2017
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DV-14-285 Honorable
John W. Larson, Presiding Judge
Appellant: Sarah M. Lockwood, Bryan C. Tipp, Tipp, Coburn,
Appellee: G. Patrick HagEstad, Tim E. Dailey, Milodragovich,
Dale & Steinbrenner, P.C.
Michael E Wheat, Justice
Kerry Maier (Maier) sued Erin Wilson (Wilson) after a
vehicle-pedestrian collision in Missoula, Montana. Maier
appeals from a judgment in the Fourth Judicial District
Court, Missoula County, following a jury trial. We affirm in
part, reverse in part, and remand for further proceedings.
We restate the issues on appeal as follows:
One: Did the District Court err in denying Plaintiff's
motion for summary judgment regarding negligence per se?
Two: Did the District Court abuse its discretion in
responding to a written question submitted by the jury during
Three: Did the District Court abuse its discretion by denying
Plaintiff's counsel the opportunity to cross-examine
Bridget Smith regarding her prior inconsistent
AND PROCEDURAL BACKGROUND
This case arises from a vehicle-pedestrian collision on April
9, 2013, in Missoula, Montana. Wilson was driving east on
Sixth Street around 8:00 a.m. As she approached the
intersection of Sixth Avenue and Helen Avenue, Wilson was
blinded by the sun's glare on her windshield. Wilson
testified that she put down her visor to reduce the sun's
glare. Further, Wilson testified that she slowed down once
her vision was impeded. Lastly, Wilson testified that she had
made a lane change prior to passing through the intersection
of Sixth and Helen.
Maier had parked on Helen Avenue and was walking towards her
job at Curry Health Center. Maier usually crossed Sixth
Avenue at the unmarked crosswalk adjacent to Helen Avenue.
Maier testified that she looked for oncoming traffic but only
saw a car a fair distance away and believed she could cross
safely. Maier testified that she walked more than halfway
across Sixth Street before she struck by Wilson's
vehicle. Maier's body was hurled a considerable distance
into the bike lane. Maier suffered serious injuries from the
collision, including ten fractures, an ACL tear, a
concussion, and internal injuries to her bladder.
Officers responded to the scene. Officer Kaneff processed the
scene and took measurements from where Maier's body
landed to the unmarked crosswalk. Additionally, officers took
statements from several eyewitnesses, including Bridget Smith
(Smith). Smith was at the intersection of Sixth and Helen
attempting to cross Sixth street at the time of the
collision. Smith was the only eyewitness to testify at trial.
Maier filed suit against Wilson alleging negligence. Maier
filed a motion for partial summary judgment arguing, based on
an accident reconstructionist and the deposition of Wilson,
she was entitled to summary judgment on her negligence per se
claim because she was within the unmarked crosswalk. Wilson
opposed the motion, arguing Maier failed to meet her burden
of showing no dispute of fact existed. The District Court
concluded a genuine dispute of material fact existed
concerning whether Maier was in the unmarked crosswalk, which
precluded summary judgment.
Shortly before trial, the District Court held several
evidentiary hearings regarding the scope of the
witnesses' testimony. On March 14, 2016, during a
pretrial hearing, the District Court specifically ordered
that the police report would not be admitted. On March 16,
2016, the District Court issued a pretrial order
acknowledging "[p]laintiffs specifically objected to
Officer Kaneff testifying about eyewitness statements
included in the officer's report that constitute
hearsay." Based on the objection and in accordance with
M. R. Evid. 803(8)(i), the District Court determined the
officers could not testify as regarding eyewitnesses'
accounts. Therefore, the District Court ordered that
"the officers' lay testimony will be limited to
their observations and assessments made at the scene and/or
other measurements that the officers conducted as part of
their accident investigation." Further, to ensure
inadmissible hearsay would not be introduced to the jury, the
District Court ordered "[p]rior to taking the
officers' trial testimony, the Court will conduct a brief
in camera colloquy with counsel regarding the officers'
proposed testimony." Lastly, the District Court ordered
that "the parties will have an opportunity to
cross-examine eyewitnesses who will testify at trial, and
such eyewitnesses' testimony is strictly limited to their
personal qualitative observations of what they actually saw
or heard at or near the time of accident."
The case proceeded to trial on March 18, 2016. After Maier
rested her case-in-chief, Wilson called Smith as her first
witness. Smith was the only non-party eyewitness to the
collision called to testify. On cross-examination,
Maier's counsel sought to impeach Smith with prior
inconsistent statements she made to officers.
The testimony and objection at issue went as follows:
Q [by Maier's counsel, Mr. Tipp]: Notwithstanding that
you did give a statement to the police on --
THE COURT: You're done there. Next question. Next area.
MR. TIPP: Your Honor, can I --
THE COURT: You're done. You're done there.
MR. TIPP: Your Honor, can I be heard?
THE COURT: No.
MR. TIPP: Your Honor, I have --
At this point the District Court excused the jury and the
following discussion took place outside of the presence of
the jury. The District Court explained to Maier's counsel
that before referencing any prior statements by a nonparty to
this jury, counsel should have asked for a break. Maier's
counsel proceeded to make an oral offer of proof as to
Smith's prior inconsistent statements and their
admissibility under M. R. Evid. 613. Specifically,
Maier's counsel wished to question Smith on her prior
inconsistent statements relating to: the speed of
Wilson's vehicle; when Wilson's vehicle made a lane
change; and whether Wilson's vehicle passed before or
after Smith proceeded through the intersection. Based on
these inconsistencies, Maier's counsel also expressed
concern about Wilson's expert who relied on Smith's
statements as a basis for his opinion.
The District Court determined that Maier's counsel could
not question Smith about any prior inconsistent statements.
Maier's counsel then inquired about the scope of
Smith's prior statements and what exactly he could ask
regarding Smith's observations and recollection of