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Minder v. DeGross3/7/2000
Cornelia G. Clark Acting Clerk, Court of Appeals of Wisconsin
APPEAL from a judgment of the circuit court for Pierce County: ROBERT W. WING, Judge. Affirmed.
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Randy and Victoria Minder (collectively, Minder) appeal a judgment dismissing their personal injury action against Nathan DeGross and his insurer. Randy was a passenger in a car driven by DeGross when it struck an unlit tractor blocking his lane of travel one hour after sunset. The jury found that DeGross did not negligently operate his vehicle at the time of the accident. Minder argues that the court improperly exercised its discretion when it refused to allow an accident reconstruction expert to testify whether DeGross's consumption of alcohol contributed to the accident and when it refused to allow rebuttal evidence on DeGross's intoxication. We reject these arguments and affirm the judgment.
. Minder alleges that DeGross was negligent as to lookout when he failed to see the tractor. The tractor had just been used to assist Scott McCracken, whose van had been stuck in a snowbank. At the time of the accident, the van was parked at the side of the road facing toward DeGross's oncoming car. There is conflicting evidence whether the van's headlights and four-way flashers were on at the time. McCracken was hitching a snowmobile trailer to the van when he heard DeGross's car approach. He yelled to the tractor driver who could not hear him. He then stepped out from behind his van and stood in the roadway waiving his arms to get the driver's attention. DeGross never saw him. He did apply the brakes before the accident, leaving skid marks from the approximate area McCracken would have been standing to the point of collision. Minder contends that DeGross's failure to see the tractor or McCracken establishes his failure to maintain a proper lookout and that DeGross's intoxication contributed to his inability to avoid the accident.
. Minder's accident reconstruction expert, Sergeant Douglas Ducklow, testified regarding the location of the vehicles and skid marks. He arrived on the scene twenty minutes after the accident and never personally observed DeGross's condition. The trial court would not permit Ducklow to state his opinion whether DeGross's use of alcohol was a cause of the accident. The court sustained an objection to lack of foundation after determining that Ducklow did not base his opinion on personal observations. The court later noted that no evidence had been presented that DeGross was traveling at an excessive speed, deviated from his lane of travel or drove in any manner that would indicate that alcohol affected his driving. Therefore, the record disclosed no underlying basis for Ducklow to form an opinion regarding the role alcohol may have played in the collision.
. Whether to admit expert testimony is a matter within the trial court's discretion. See Herman v. Milwaukee Children's Hosp., 121 Wis. 2d 531, 551, 361 N.W.2d 297 (Ct. App. 1984). An expert may testify only within the areas in which the expert is qualified. See id. To establish negligence based on intoxication, Minder would have to show that the intoxicants DeGross consumed affected his ability to exercise ordinary care in the operation of his car. See Wis JI-Civil 1035. Therefore, to establish error, Minder would have to show by offer of proof that Ducklow was qualified to determine the effect of alcohol on a driver's ability to see objects in the dark, possibly hidden behind the glare of oncoming headlights, or a driver's ability to respond to the hazard. The offer of proof would also have to state Ducklow's opinion and establish the underlying facts upon which his opinion was based.
. Mind
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