HOLMES v. DOE
April 16, 1999
Record No. 981428
Saint Paul Holmes
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
Present: All the Justices
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
In this appeal, we consider whether, in a jury
trial of an automobile accident liability claim, the trial court
properly permitted the introduction of expert testimony
concerning the relationship between tire tread depth and
On July 29, 1996, pursuant to the uninsured
motorist provisions of his insurance policy and Code
Sect. 38.2-2206, Saint Paul Holmes filed a "John
Doe" action seeking damages for injuries he sustained in an
automobile accident on September 1, 1995. In his motion for
judgment, Holmes alleged that as a result of the negligence of
John Doe, the unknown driver of a tractor-trailer truck, Holmes
lost control of his vehicle, which then left the highway and
collided with a tree. Holmes sought $450,000 in damages.
Government Employees Insurance Company,
Holmes’s automobile liability insurance carrier, defended
the action in the name of John Doe. In the grounds of defense,
Doe denied liability and asserted that the accident was the
result of Holmes’s own negligence. It was Doe’s
contention that Holmes had been operating his vehicle too fast
for the highway and weather conditions, causing it to hydroplane.
During a jury trial, the trial court instructed
the jury on the requirements for finding a "John Doe"
motorist liable and on the effect of contributory negligence. The
jury returned its verdict for Doe. We awarded Holmes this appeal.
Upon familiar principles, we relate the
essential facts concerning the accident in the light most
favorable to Doe, the prevailing party in the trial court.
Immediately prior to the accident, Holmes was operating his 1993
Ford Mustang, a rear-wheel drive vehicle, in the right-hand lane
of Interstate 85 behind a tractor-trailer truck. Because Holmes
did not want to follow the truck, he drove his vehicle into the
left-hand lane. The truck then exhibited a left turn signal and
also pulled into the left lane in front of Holmes’s vehicle.
There was no contact between the vehicles. Holmes applied his
brakes and his vehicle "started shaking and started sliding
to the right." It then began "rotating around,"
went off the right side of the highway, and ultimately collided
with a tree.
At the point of the accident, the highway was
straight and level. A heavy rain was falling and there was
standing water on the roadway. The posted speed limit was 65
miles per hour, and Holmes had been operating his vehicle at that
speed. Holmes was unable to identify the driver or owner of the
Prior to trial, the parties stipulated that all
four tires on Holmes’s vehicle had at least the statutory
minimum tire tread depth of 2/32nd of an inch. Code
Sect. 46.2-1043. At the time of the accident, the two front
tires had treads 9/32nd of an inch in depth, the left rear tire
had a tread 3/32nd of an inch in depth, and the right rear tire
had a tread 2/32nd of an inch in depth.
Relevant to the issue presented in this appeal,
Thomas O. Lee qualified as an expert to testify on the conditions
under which there can be a loss of highway traction resulting
from a loss of contact between an automobile tire and a wet road
surface, commonly known as hydroplaning. In a pre-trial hearing,
the trial court ruled that because Lee had no specific knowledge
of the road conditions at the time and place of Holmes’s
accident, Lee’s testimony would be limited to "the
principles of hydroplaning." Prior to permitting Lee to
testify, the trial court reiterated that Lee would not be
permitted "to particularize this accident."
At one point in his testimony, Lee stated that
a tire with a tread 2/32nd of an inch in depth "is illegal
in this state." Responding to Holmes’s objection, the
trial court stated that "[t]he jury has already been told
that [2/32nd of an inch is a legal tire tread depth in Virginia].
I think what Mr. Lee meant to say was that if it’s less than
2/32." Lee agreed with the trial court that he had
misspoken, apologized, and corrected his testimony. Holmes’s
counsel responded, "Perhaps. That’s fine."
Lee then testified that a tire with a tread of
the minimum legal depth was "not safe on wet surfaces"
and that a tire that has a tread 2/32nd of an inch in depth
"should be removed." Holmes again objected that this
was contrary to the stipulation of legal minimum tire tread
depth. The trial court responded that "the jury understands
that 2/32’s of an inch is legal in Virginia."
Holmes’s counsel responded, "Absolutely."
The balance of Lee’s testimony was devoted
to describing the physical circumstances of speed, condition of
an automobile’s tires, road surface conditions, and weather
conditions under which a vehicle might hydroplane. More
specifically, Lee explained that a tire is supposed to channel
road water through circumferential voids between the ribs of the
tire so that water can get through the tire treads when the tread
is in motion going down the pavement. He further explained that
"when the vehicle is moving down the [wetted] pavement, it
builds up a wedge of water in front of the tire" and
"[i]f the water is sufficient enough, it will lift the tire
off the pavement and provide an insulation between the tire and
the pavement. . . . [W]hen that totality takes
place, that’s called hydroplaning; in other words, skiing on
water." Lee further explained that where the tread depth of
a tire is low "it would not permit the water to get through
as easily and would thus reduce the hydroplaning speed of the
Lee testified that hydroplaning results from a
combination of factors including the depth of the water, the
speed of the vehicle, the depth of the tire treads, and the type
of road surface. He further testified that for a rear-wheel drive
vehicle, the tread depth of the rear tires was the essential
factor and that when "tread depth . . . of those
tires is down towards the minimum, the hydroplaning speed
dramatically drops . . . [I]t can drop as much as 10
miles an hour."
During Lee’s testimony, Holmes asserted
numerous objections, contending that Lee was testifying to
matters within the common knowledge of the jury or that Lee was,
without adequate foundation, offering speculative opinions on the
ultimate question of fact.
On appeal, Holmes first contends that the trial
court erred in permitting Lee to testify that a tire tread 2/32nd
of an inch in depth was not legal in Virginia. The record amply
demonstrates, however, that Lee corrected his misstatement and
that the jury was properly instructed on several occasions on
that issue. Accordingly, there is no merit to this contention.
Holmes further contends that Lee’s
testimony that a tire tread 2/32nd of an inch in depth was unsafe
for use on a wet road surface and that tires with the minimum
tread depth should be removed from a vehicle was inadmissible
because these contentions were contrary to the provisions of Code
Sect. 46.2-1043. We disagree.
Subsequent to the initial misstatement of the
law, which Lee corrected, none of Lee’s statements expressed
an opinion that a tire tread 2/32nd of an inch in depth was
"illegal," but, rather, that it was "unsafe."
Code Sect. 46.2-1043, although a safety-related statute,
reflects a policy decision of the legislature in establishing the
minimum tire tread depth for the operation of motor vehicles in
this Commonwealth. The statute does not purport to address the
specific safety concerns for operating a vehicle with minimum
depth treads under the circumstances of this case. Lee, however,
was qualified to offer an opinion on tire safety, his area of
Holmes further contends that Lee’s
testimony was speculative because Lee had no specific knowledge
of the road and weather conditions at the time of the accident.
However, a careful review of the record reveals that, in accord
with the trial court’s limitation on his testimony, Lee
testified only about hypothetical tire, road, and weather
conditions in order to explain "the principles of
hydroplaning." Lee never opined what the conditions at the
time and place of the accident were, nor did he offer an opinion
as to the cause of Holmes’s accident. Rather, Lee’s
testimony was limited to explaining the general relationship of
hydroplaning to wet road conditions, tire tread depth, and speed.
Accordingly, there is no basis for Holmes’s contention that
this testimony was improperly speculative.
Finally, Holmes contends that Lee’s
testimony was irrelevant because the jurors could, from their
common experience, draw their own conclusions about the effect of
the road conditions on Holmes’s ability to control his
vehicle. We disagree. While it is certainly true that the danger
of hydroplaning is a matter of common experience, knowledge of
the scientific cause of hydroplaning is not. Determining the
conditions under which a vehicle will hydroplane requires an
understanding of multiple variables that are not within the
common knowledge of the average citizen. See, e.g.,
Bush v. State of Louisiana, 395 So. 2d 916, 919 (La. Ct.
Expert testimony is admissible where the jury
"is confronted with issues that require scientific or
specialized knowledge or experience in order to be properly
understood, and which cannot be determined intelligently merely
from the deductions made and inferences drawn on the basis of
ordinary knowledge, common sense, and practical experience gained
in the ordinary affairs of life." Compton v. Commonwealth,
219 Va. 716, 726, 250 S.E.2d 749, 755-56 (1979)(citation
omitted); see also Neblett v. Hunter, 207
Va. 335, 339-40, 150 S.E.2d 115, 118 (1966). Here, the jury heard
evidence from other witnesses concerning the weather, road, and
traffic conditions and Holmes’s speed of travel. Lee’s
expert testimony was appropriate to aid the jury in putting this
factual evidence into an appropriate context from which the jury
could draw its own conclusions. Code Sect. 8.01-401.3(A); see
also Lawson v. John Doe, 239 Va. 477, 482-83, 391
S.E.2d 333, 336 (1990). Accordingly, Lee’s testimony was not
irrelevant and was an appropriate topic of expert testimony in
For these reasons, we will affirm the judgment
of the trial court sustaining the jury’s verdict for Doe.