Question: What Is A “Skilled Witness”?
Answer: A Witness With The Degree Of Knowledge Short Of That Sufficient To Be Declared An Expert, But Somewhat Beyond That Possessed By The Ordinary Jurors.
In 2011, John Goins, an Averitt employee, operated a semi-truck in the course of his employment. Averitt owned the truck. Goins collided with another semi-truck on Interstate 70. Indiana Trooper Brandon Mullen went to the scene and prepared a crash report. The collision and fire damaged the highway and a guardrail. After the accident, emergency repair of this damage was $59,968.65. The State sued Averitt. The State alleged that Averitt, through Goins, negligently damaged the highway and guardrail, resulting in damages. The parties filed cross-motions for summary judgment. Averitt also filed a motion to strike portions of the evidence designated by the State, specifically Mullen’s crash report and paragraph 6 of an affidavit signed by Mullen. The trial court granted the motion to strike in part and denied it in part. The court granted the State’s motion for summary judgment and entered judgment accordingly. This appeal followed.
On appeal, the State asserts that the affidavit is entirely admissible. The affidavit’s paragraph 6, which the trial court struck, states, “John Goins, driver of the 2008 Volvo semi-truck, was not paying attention to the road and did not see that traffic was stopped.” Although Mullen represented in the affidavit that he had “personal knowledge of the facts set forth herein,” he also acknowledged that he investigated the accident after the fact. Further, the affidavit refers to Mullen’s crash report, which included witness statements. The State claims that Mullen’s opinion on the cause of the accident, as expressed in his affidavit, is admissible because it is a statement by a skilled witness. A skilled witness is a person with a degree of knowledge short of that sufficient to be declared an expert under Indiana Evidence Rule 702, but somewhat beyond that possessed by the ordinary jurors. A witness that does not qualify as an expert may still provide opinion testimony if the opinion is “rationally based on the witness’s perception; and … helpful to a clear understanding of the witness’s testimony or to a determination of a fact in issue.” A skilled witness offering an opinion under Rule 701 may not base the opinion on information received from others or on a hypothetical question. Here, Mullen developed his opinion during his post-accident investigation. As his report indicates, he considered what witnesses told him about the accident. His opinion is thus based in part on information received from others, so it is not admissible under Rule 701.
Further, the Indiana Supreme Court has made it clear that “perception” does not include “perceiving” what another person is telling you:
“Perception” has been defined as “the process, act, or faculty of perceiving …. insight, intuition, or knowledge gained by perceiving.” In turn, “perceive” has been defined as “to become aware of directly through any of the senses, esp. sight or hearing.”
The Court of Appeals concluded that the trial court acted within its discretion in striking paragraph 6 of his affidavit. Examining the remaining evidence in the light most favorable to the nonmovant (Averitt, for the purposes of the State’s motion), the State did not submit evidence to establish that Averitt, through Goins, breached a duty and proximately caused the damage to the highway and guardrail. Under these circumstances, we must reverse the trial court’s grant of summary judgment to the State and remand for trial. 18 N.E.3d 608