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Norris v. Zambito10/19/1999
as to whether the officers' conduct amounted to gross negligence or a reckless disregard for the rights and safety of others, or that they had an intent to harm plaintiff's decedent. Accordingly, the trial court granted summary judgment in favor of defendants Hayes, Bynum, and City and dismissed plaintiff's claims against them. Plaintiff appeals.
I.
Plaintiff assigns error to the trial court's exclusion of those portions of Mr. Gormley's affidavit in which he opined that the officers' conduct in pursuing Zambito "was conducted in a grossly negligent manner and showed a reckless disregard for the safety of others" and "was a violation of the City of Durham's pursuit policy." We reject plaintiff's argument.
G.S. § 8C-1, Rule 704 provides " estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The rule, however, does not authorize the admission into evidence of all expert opinion testimony. As a general rule, an expert may not testify as to whether a certain legal standard has been met. Pelzer v. United Parcel Service, Inc., 126 N.C. App. 305, 484 S.E.2d 849, disc. review denied, 346 N.C. 549, 488 S.E.2d 808 (1997).
The rule that an expert may not testify that such a particular legal Conclusion or standard has or has not been met remains unchanged by the new Evidence Code, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness. State v. Smith, 315 N.C. 76, 100, 337 S.E.2d 833, 849 (1985).
Opinion testimony may be received regarding the underlying factual premise, which the fact finder must consider in determining the legal Conclusion to be drawn therefrom, but may not be offered as to whether the legal Conclusion should be drawn. Hajmm Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991).
From the Rules of Evidence, the advisory committee's notes, case law, and commentaries, we discern two overriding reasons for excluding testimony which suggests whether legal Conclusions should be drawn or whether legal standards are satisfied. The first is that such testimony invades not the province of the jury but "the province of the court to determine the applicable law and to instruct the jury as that law." (citation omitted.) It is for the court to explain to the jury the given legal standard or Conclusion at issue and how it should be determined. To permit the expert to make this determination usurps the function of the Judge. The second reason is that an expert is in no better position to conclude whether a legal standard has been satisfied or a legal Conclusion should be drawn than is a jury which has been properly instructed on the standard or Conclusion. Id. at 587, 403 S.E.2d at 489.
Whether the officers' conduct in pursuing Zambito was "grossly negligent" or "showed reckless disregard for the safety of others" are legal Conclusions to be drawn from the evidence; Mr. Gormley's opinion testimony drawing such Conclusions was, therefore, properly excluded. See Murrow v. Daniels, 85 N.C. App. 401, 355 S.E.2d 204 (1987), rev'd on other grounds, 321 N.C. 494, 364 S.E.2d 392 (1988). Likewise, the City's pursuit policy establishes a legal standard and, while Mr. Gormley would certainly be permitted to testify as to the requirements of the City's pursuit policy, the trial court properly declined to consider his testimony as to whether the officers' conduct violated that standard. This assignment of error is overruled.
II.
Plaintiff's primary contention on appeal is that the trial court erred in granting the motions of defendants Hayes
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