Plaintiff, Sharon Kay Miller, appeals by leave granted an order affirming judgment in favor of defendant, Brian Michael Hensley. We reverse.
This claim arises as a consequence of a traffic accident involving plaintiff and defendant at the intersection of Twelve Mile Road and Campbell in the city of Royal Oak. Plaintiff testified that her vehicle was struck by defendant’s vehicle while she was attempting to turn south off westbound Twelve Mile Road onto Campbell after the traffic light had changed from yellow to red. Defendant was traveling east on Twelve Mile Road when the collision occurred.
Plaintiff argues on appeal that the lower court improperly admitted testimony from two investigating police officers who opined that plaintiff was at fault for the accident. We agree.
Decisions regarding whether to admit evidence are within the trial court’s discretion and will be reversed only where there is a clear abuse of discretion.
Chmielewski v Xermac, Inc,
Plaintiff first argues that the officers’ testimony was improperly admitted contrary to our Supreme Court’s decision in
Washburn v Lucas,
These rules govern proceedings in the courts of this state to the extent and with the exceptions stated in Rule 1101. A statutory rule of evidence not in conflict with these rules or other rules adopted by the Supreme Court is effective until superseded by rule or decision of the Supreme Court.
The rule stated in Washburn and its progeny was not incorporated into the Michigan Rules of Evidence; therefore, the rule did not survive their adoption.
Next, plaintiff argues that the police officers’ testimony was inadmissible under MRE 701 because the officers’ opinions were based on the perceptions of other witnesses and not their own perceptions. We agree.
The admissibility of lay witness opinion testimony 1 is controlled by MRE 701, which provides:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which axe (a) xationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
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This Court has admitted lay opinion testimony from investigating police officers regarding fault in traffic accidents when the testimony was the result of direct observations and analysis of the accident scene. See
Richardson v Ryder Truck Rental, Inc,
In the instant case, the officers’ testimony that plaintiff was at fault for the collision was not rationally based on their own perceptions as required by MRE 701. Both officers testified that their opinion that plaintiff was at fault for the collision was based on their conclusion that defendant’s vehicle entered the intersection on a yellow light. However, neither officer was present at the time of the collision. The officers’ conclusions regarding the color of the traffic light when defendant entered the intersection were based solely on statements made by witnesses at the accident scene. Contrary to defendant’s argument on appeal, the officers’ opinions regarding fault were not based on their view of the vehicles and their observations of the point of impact. Because the officers’ testimony that plaintiff was at fault for the collision was not rationally based on their own perceptions, the testimony was not admissible under MRE 701.
Evidentiary errors are not a basis for vacating, modifying, or otherwise disturbing a judgment unless declining to take such action would be inconsistent with substantial justice. See MCR 2.613(A);
Sackett v Atyeo,
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
Neither police officer who testified at trial was presented as an expert witness.
Plaintiffs objection to the admission of the first officer’s opinion testimony regarding his assignment of fault for the collision was overruled by the trial court. Plaintiff did not object to the second officer’s substantially identical testimony. However, the issue was properly preserved for appellate review because an issue is not waived by a party’s failure to make futile objections.
Baker v Wayne Co Bd of Rd Comm’rs,