Wednesday, February 03, 2010, 8:48 PM

COA: Testimony from Accident Reconstruction Expert Cannot Defeat Summary Judgment

In Blackwell v. Hatley, the Court of Appeals held that (1) for accidents occurring prior to December 1, 2006, an accident reconstruction expert cannot opine on the speed of a vehicle without observing the accident; and (2) a Town and its employees cannot be held liable for an accident that resulted from an alleged failure to maintain a state road.

On May 21, 2004, Josie Blackwell was driving her car down E. Round Street in Landis, North Carolina with her son. At the same time, Timothy Hatley was hauling a trailer in his pick-up truck on S. Main Street. After stopping at the intersection of E. Round Street and S. Main Street and checking traffic from both directions, Blackwell entered the intersection her car was struck by Hatley's pick-up truck.

Blackwell filed suit in in Rowan County Superior Court against Hatley, the Town of Landis, several employees of the Town of Landis, and a number of other entities. Blackwell alleged that Hatley was negligent in the maintenance and operation of his vehicle. The Town of Landis and its employees were alleged to have "negligently failed to enforce a town ordinance requiring property owners to keep vegetation trimmed, and negligently failed to establish the proper road design, speed limit, or traffic control devices on S. Main Street." On September 11, 2008, Judge Larry G. Ford entered summary judgment in favor of Hatley and the Landis defendants. Blackwell appealed.

The Court of Appeals' decision was focused, in large part, on what evidence a court should consider when deciding a motion for summary judgment. The Court recognized that "affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment." Absent evidence to the contrary, the Court of Appeals will assume that a trial court presented with "both competent and incompetent evidence" disregarded the incompetent evidence and relied solely upon the competent evidence in reaching its decision.

With respect to the appeal of the Order granting summary judgment in favor of Hatley, the primary question was whether Blackwell's accident reconstruction expert "created a genuine issue of material fact regarding Hatley's speed." The Court of Appeals held that although Blackwell's expert disagreed with other testimony regarding Hatley's speed at the time of the accident, this disagreement was insufficient to create a genuine issue of material fact because the expert was not competent to testify regarding the speed of Hatley's vehicle.

The expert could not provide an expert opinion regarding Hatley's speed because, for accidents occurring before December 1, 2006, an expert wishing to opine on the speed of a vehicle must have actually witnessed the accident. Because Blackwell's expert's opinion about the speed of Hatley's pick-up truck was based upon mathematical calculations and not personal observation, it was not competent evidence and could not defeat summary judgment.

The Court of Appeals also affirmed the grant of summary judgment in favor of the Town of Landis and its employees because Blackwell failed to establish that they owed her a legal duty. The Court held that the S. Main Street was "a state highway under the control and authority of the North Carolina Department of Transportation." Therefore, the state, and not the Town of Landis, had the legal duty to maintain and regulate S. Main Street. Without establishing that the Town of Landis owed her a duty, Blackwell's negligence claims failed.

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