Bland v. Davison County

KQNENKAMP, Justice

(concurring in part and dissenting in part).

[¶ 63.] I join the majority writing, with the exception of Issue 5 regarding the trial court’s decision to disallow expert opinion on industry standards. This opinion testimony was pivotal; otherwise, the jury was left in the dark about highway maintenance routines in other states. It would have been very helpful for jurors to know what standards other jurisdictions practice in dealing with chronic ice patch hazards, such as the one in this case.14

*468[¶ 64.] South Dakota’s rule on expert testimony is a verbatim rendition of the federal rule:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

SDCL 19-15-2 (FedREvid 702). The federal rules liberalize expert opinion testimony, so doubts about the usefulness of such opinions should ordinarily be resolved in favor of admission. 4 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 702.04(1) (2ded 1997). The test for admissibility is not whether jurors would know from their own experience whether sanding was necessary. “Under Rule 702, a court is no longer required to exclude expert testimony merely because it relates to a subject matter within the comprehension of the average juror.... It is not always possible — and rarely profitable — to draw a bright line between issues within the comprehension of jurors and those that are not.” Id. at § 702.03[2]. “[E]xpert testimony is admissible even where the issue is within the ordinary, unaided comprehension of the jury_” John W. Larson, South Dakota Evidence § 702.1, at 475 (1991). The test is simply whether expert testimony will help the jury.

Rule 702 abandons the common-law tradition that profoundly distrusted expert opinion testimony, both because it invaded the province of the jury and because a person could not be prosecuted for expressing an opinion. Under Rule 702, expert testimony is admissible when it will assist the trier of fact to understand the evidence. In short, the test is no longer necessity, but helpfulness.

Weinstein & Berger, Weinstein’s Federal Evidence § 702.02(1). Accord Zens v. Harrison, 538 N.W.2d 794, 795-96 (S.D.1995); State v. Werner, 482 N.W.2d 286, 291 (S.D.1992); see Koch v. Southern Pacific Co., 266 Or. 335, 513 P.2d 770, 773 (1973)(test for admissibility is whether the expert is of “appreciable help to the jury ... whether the subject is such that the expertise of the witness gives ... special insight superior to that of’ the jury).

[¶ 65.] In the face of the county’s argument its own pz'aetices were reasonable, the jury was not permitted to hear expert opinion on standard practices in other states with similar winter conditions. Industry standards and standards of care are common grist for expert testimony. See In re Widdison, 539 N.W.2d 671 (S.D.1995)(in professional licensing case, expert testimony used to establish an appropriate standard for conduct and whether the person seeking to retain license met or fell below standard); Schrader v. Tjarks, 522 N.W.2d 205 (S.D.1994)(expert testimony on nursing standard of care); In re Schramm, 414 N.W.2d 31 (S.D.1987)(expert required to establish standard of care for dentistry); Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986), modified on other grounds, 445 N.W.2d 315 (S.D.1989)(expert testimony on standard of care for professional appropriate unless the area is within the common knowledge and comprehension of laypersons); Breivo v. City of Aberdeen, 15 Wash.App. 520, 550 P.2d 1164 (1976)(expert testimony allowable to provide “technical factors” beyond general knowledge of jurors in highway safety ease); TCBY Systems, Inc. v. *469RSP Co., Inc., 33 F.3d 925, 929 (8th Cir.1994)(expert testimony suitable to help jury understand reasonableness in franchise industry); Quintel Corp. v. Citibank, N.A., 606 F.Supp. 898 (S.D.N.Y.1985)(expert testimony helpful to demonstrate real estate industry standards).

[¶ 66.] Evidentiary rulings will not be disturbed absent a clear showing of an abuse of discretion. Zens, 538 N.W.2d at 795; State v. Hanson, 456 N.W.2d 135, 138 (S.D.1990). To assess whether there was an abuse we might find it enlightening to examine what the trial court allowed the opponent to present. As part of its ease, the county called the Director of Operations for the South Dakota Department of Transportation (DOT), who testified over plaintiffs’ objection about written state and federal road maintenance standards for federally funded highways such as the road where this accident occurred. In explaining why it allowed this testimony for the county, and refused plaintiffs’ industry standards testimony, the court remarked, “Well for your benefit, I want to say, my knowledge of what has happened is I don’t think that I ruled that someone couldn’t perhaps refer to what other people do or what state standards there were. I didn’t intend to foreclose that, it’s got to come in the right way.”

[¶ 67.] Although the standards the DOT witness referred to were not specifically applicable to counties, he was nonetheless allowed to impart to the jury that no written federal or state guidelines “direct what the county should do to ‘maintain the road in a manner satisfactory.’ ” The clear implication was that if no more precise standards controlled state roads, then certainly less-traveled county roads would have inferior maintenance standards. Contrast this with the prohibited opinion from plaintiffs’ expert, proposed in one of plaintiffs’ refused offers of proof:

Our offer is that our expert, one of the foremost experts in the country on this subject of snow and ice control, would verify that the recognized standard of care in this industry would require this sanding to have been done at this icy hazard. I believe he testified that way [in the deposition], But, that since it’s an icy hazard, it’s isolated and the road surface is different on both sides of it, and the hazard, which is part of what makes it a hazard, that he— that the generally accepted standard of care is for safety and that they have to take action, they cannot not [sic] stand there by and allow the hazard to knowingly be on the road. So, his opinion is very similar to law, in that he would explain that that is the practice which is followed in virtually every jurisdiction.

Neither side’s expert was permitted to testify on industry standards, but it is not satisfactory to infer that because both experts were similarly restricted, the ruling was fair. Plaintiffs had the burden of proof and the county was still able put before the jury that no written guidelines governed snow and ice removal for this road.

[¶ 68.] Not allowing plaintiffs’ expert to testify on maintenance routines for icy roads in other states was an abuse of discretion. Other courts have likewise found similar restrictions on expert opinion reversible error. See, e.g., Ceravole v. Giglio, 152 A.D.2d 648, 543 N.Y.S.2d 524, 526 (App.Div.1989)(“pre-clusion and improper restriction” of expert testimony regarding accepted practice among municipalities on painting pavement markings on roadways warranted reversal); Linkstrom v. Golden T. Farms, 883 F.2d 269, 270-272 (3rd Cir.1989)(error to exclude testimony of farm safety expert regarding safety practices of a reasonable, prudent farmer). I also join Justice Sabers’ writing on this issue.

[¶ 69.] For these reasons I would reverse.

. Our Legislature conditionally abrogated sovereign immunity for counties, thus making them responsible in civil damages for negligence in certain circumstances. "The County has liability insurance, therefore, sovereign immunity is not applicable in this case since SDCL ch. 21-32A has eliminated sovereign immunity to the extent liability insurance coverage exists." Bland v. Davison County 507 N.W.2d 80, 82 (S.D.1993)(Bland I)(Wuest, J., concurring specially). It becomes our duty, therefore, to delineate the rules under which liability may affix. Bland I never touched upon the public duty doctrine, which remains viable despite the absence of sovereign immunity. See Tipton v. Town of Tabor, 538 N.W.2d 783 (S.D.1995) and the cases preceding it. Cf. Knudsen v. Hall, 490 A.2d 976 (R.I.1985)(statute requiring roads to be kept in “good repair” created public duty to citizenry at large, not to specific individuals). Nevertheless, in many jurisdictions where sovereign immunity has similarly been waived, local governmental entities may be liable for negligence in failing to remedy hazards created by isolated patches of ice or snow, especially when the problem was formed through unnatural accumulation and local authorities had adequate prior notice. Draskowich v. City of Kansas City, 242 Kan. 734, 750 P.2d 411 (1988)(unnatural source, a broken water main, caused ice to form on road); Jones v. Commonwealth, Dep't of Highways, 520 S.W.2d 749 (Ky.1974)(ice patch was the only ice on entire section of highway); Hash v. State, 247 Mont. 497, 807 P.2d 1363 (1991)(question of negligence properly for the jury when accumulation of “black ice" on curve in road caused fatal one-car accident; source of freezing water was plowed snow deposited at highest part of curve in road); Corratti v. State, 20 A.D.2d 166, 245 N.Y.S.2d 561 (1963)(blocked drainage pipe caused unremediated icy patch on eastbound lane existed over period of several winters); Ventura v. City of Pittsburgh, 159 Pa.Super. 279, 47 A.2d 668 (1946)(abnormal accumulation causing patch of ice over portion of road); Wagner v. Village of Waterbury, 109 Vt. 368, 196 A. 745 (1938)(city had prior notice of icy patch, but negligently failed to take any action to remedy it); City of Richmond v. Best, 180 Va. 429, 23 S.E.2d 224 (1942); State v. Dieringer, 708 P.2d 1 (Wyo.1985). See James O. Pearson, Jr., Annotation, Liability, In Motor Vehicle-Related Cases, of Governmental Entity for Injury or Death Resulting From Ice or Snow on Surface of Highway or Street, 97 A.L.R.3d 11 (1980 & 1996 Supp)(collecting cases).

In addition to the public duty issue, a troubling uncertainty in this case is whether the ice patch in question was "unnatural.” Usually, this term is reserved for artificially created hazards involving a "human” factor, not ones inherent to win-*468ler conditions. The ice patch here was caused by a shelter belt, intentionally planted, of course, but hardly an artificial entity in South Dakota’s agrarian landscape, especially since the aftermath of the “dust bowl” years. Between 1935 and 1942 the United States Department of Agriculture planted 3,206 miles of shelter belts in central South Dakota alone, using 41,599,000 trees. Herbert S. Schell, History of South Dakota, 353 (3ed rev 1975). Obviously, we cannot now reexamine the holding in Bland I, but these points will perhaps bear further refinement and possible modification in future cases. On the other hand, the law seems clear that accidents occurring in generally icy or snowy conditions on streets and highways will not ordinarily give rise to local government liability. Cf. Homan v. Chicago & Northwestern Transp. Co., 314 N.W.2d 861, 862 (S.D.1982). See, e.g., Lansing v. County of McLean, 69 Ill.2d 562, 14 Ill.Dec. 543, 372 N.E.2d 822 (1978)(posting warning signs everywhere of conditions resulting from general snow and ice impractical and expensive); Workman v. Sioux City, 218 Iowa 217, 253 N.W. 909 (1934)(to hold cities liable for ice and snow on roads, with its thawing and freezing, would establish a rule of liability forcing them into bankruptcy).