In a recent appellate case, a Texas motorcycle accident plaintiff challenged the trial court’s admission of evidence related to causation and prior extraneous offenses. The motorcyclist was driving in the right lane on a service road when an 18-wheeler truck swung into the middle lane to make a right turn. He tried to pass on the right, and a truck cut him off to make a turn. He steered into a curb, flew over the handlebars, and was seriously injured under the tires of the truck.
He was speeding when he tried to pass. The truck company, but not the driver, admitted the right turn was wider than necessary. The lower court refused to permit testimony from the only eyewitness that the motorcyclist and the truck driver were equally at fault. An officer who investigated the accident determined that the motorcyclist had tried to pass the truck unsafely. Both sides presented expert testimony. After a two-week trial, the jury determined there was more than $7 million in damages. It found that the truck driver was 25% negligent and that the motorcyclist was 75% negligent. A take-nothing judgment was entered.
The motorcyclist appealed. He argued it was improper to admit the officer’s testimony that he caused the crash by passing unsafely on the right as well as presenting evidence of his prior bad acts. The company and the truck driver argued he waived those complaints because he discussed the evidence in his opening statement and also introduced it at trial. Specifically, the plaintiff’s attorney had commented that he was no Boy Scout and had evaded arrest, among other things, and that the police officer didn’t talk to the only eyewitness in stating that the motorcyclist passed unsafely to the right.
The motorcyclist agreed he’d introduced most of the evidence, but he argued he should have been able to reference it during his opening statement or bring it in during direct examination without waiving the error because the trial court had already decided it was coming in. He’d introduced testimony from the eyewitness. In her testimony, she talked about the positioning of the truck on a diagram and the crash report. Only one contributing factor caused the accident, according to the report — the motorcyclist not passing safely.
The appellate court explained that a party couldn’t appeal on the issue that an opponent’s evidence was not properly admitted if it introduced the same evidence first. After the opponent refers to the problematic evidence, the objecting party is allowed to rebut, demonstrate, or explain the evidence. However, in this case, the plaintiff had referenced the evidence in opening statements and was the first to introduce the evidence, and therefore he waived his objections.
The plaintiff also claimed that the trial court had improperly excluded opinion testimony from the sole eyewitness that he and the truck driver were equally to blame for the crash and that the error most likely caused an improper judgment to be rendered. The appellate court concluded that the testimony was admissible, but the mistake in excluding it probably didn’t result in an improper judgment.
The motorcyclist argued it was an error for the trial court to exclude evidence because the woman was the only eyewitness to an accident for which liability was heatedly contested. The appellate court explained that an opinion’s not objectionable only because it embraces an ultimate issue under Texas Rule of Evidence 704. In this case, the defendants argued the eyewitness’ initial view of the scene was obstructed, and she didn’t see the motorcyclist hit the curb. The appellate court agreed that it was an abuse of discretion to exclude her opinion, but the exclusion most likely didn’t cause an improper judgment to result. Surveillance videos showed part of the accident, and the woman filled in the details with her observations. The judgment was affirmed.
If you are hurt in a motorcycle accident, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.