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Loevsky v. Carter5/4/1989
speed, Laurie's unfamiliarity with the motorcycle, her loss of control and balance, and her failure to properly react, were some of the evidentiary factors attributing fault to Laurie and Michael. Also, independent testimonial evidence suggested that Laurie had consumed two beers prior to the accident. And contradictory evidence was
adduced as to whether the presence of gravel, if any, on the public roadway, was a contributing factor to the accident.
This civil action commenced with the filing of Plaintiffs' complaint on June 10, 1985 (and later amended on July 30, 1985). Count I alleged the negligent operation and entrustment/supervision of the motorcycle against Defendants Laurie and Michael, respectively. Count II alleged the negligent design, repair and maintenance of the public roadway against Defendant County.
On March 24, 1987, Laurie filed a motion in limine, seeking to exclude, inter alia : 1) evidence of Laurie's alleged consumption of alcohol prior to the accident, on the basis of undue prejudice; and 2) demonstrative evidence in the form of a videotape prepared by an accident reconstructionist retained by County, on the basis that many of the material facts surrounding the actual accident were factually dissimilar from the facts upon which the videotape was based, and hence, was untrustworthy and unduly prejudicial.
A hearing on Laurie's motion in limine was held on April 7, 1987 before the Third Circuit Court, and the circuit court's written Order Partially Granting Defendant [Laurie] Carter's Motion in Limine was subsequently entered on April 14, 1987. In its written order, the circuit court ruled admissible: 1) testimony concerning Laurie's use of beer prior to the accident, including Patti Sherrard's deposition testimony about "Patti, we were wasted," provided that any testimony based on guesses, assumptions, beliefs, and thoughts were prohibited; and 2) the videotape.
Jury trial commenced on April 14, 1987.
During County's case-in-chief, John Stephenson (Stephenson), qualified as an expert in the handling and safe operation of motorcycles and in the reconstruction of motorcycle accidents, testified that the actual motorcycle involved in the accident (in its repaired condition) was driven by Stephenson in various test runs at the accident scene and was recorded on videotape.
In a particular series of runs, three bags of fairly coarse dirt and gravel were laid down on the edge of the roadway at the curve, and Stephenson drove around the curve, through the rock and gravel area, up to speeds of approximately 34 m.p.h. Also, Stephenson was not carrying a passenger during most of the runs through the dirt and gravel area, and while Stephenson drove through this area essentially along the shoulder stripe, Laurie had entered the curve just left of the center of the lane. Laurie's angle of approach, Stephenson acknowledged, was therefore different from Stephenson's.
Dr. Bernice Coleman (Dr. Coleman), qualified as an expert on the effects of alcohol on the human body and behavior, was asked to assume as true the following facts: 1) a nineteen year old female weighing approximately 130 pounds; 2) awoke at around 10:00 a.m.; 3) had several cups of coffee; 4) drank two beers; and 5) was later identified at approximately 10:52 a.m. as the driver involved in a motorcycle and pedestrian accident.
Based on these assumptions and the additional assumptions that the hypothetical female consumed both beers at periods somewhere between 10:00 - 10:30 a.m., Dr. Coleman testified, over Plaintiffs' objection, on t
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