Amylou R. v. County of Riverside Appellant's Opening Brief

properly concluded that the issue of the allegedly negligent construction of the Miller
residence was one within the knowledge of experts only.
Plaintiffs failed to present
any competent expert opinion evidence on this issue ... Thus, lacking the requisite
expert testimony, plaintiffs failed to prove an essential element of their case -- the
standard of care applicable to [the builder] -- and the nonsuit was proper as to the
theory of negligence." (Miller, supra, 8 Cal.3d at pp. 702-703.)
In the instant case, the trial court wrongly concluded that plaintiff need not
present expert evidence as to the standard of care and denied the County's motion for
nonsuit.
(RT 1448.) The field of criminal investigation, it may be said, is even more
complex than that of the construction industry, in light of the human variables
involved. The issue of whether a criminal investigation has been negligently
conducted involves a multitude of subsidiary questions bearing on which leads to
follow, how and when to question witnesses, how to interpret evidence at a crime
scene, which evidence is reliable and which is not, how to deal with unwilling
witnesses, much less witnesses who are also victims of crimes, as well as a multitude
of other complex factors.
These are not questions the average lay person has the
training or experience to resolve. Since plaintiff failed to present any competent
expert opinion evidence on the standard of care for a murder-rape investigation, and,
specifically, since she failed to present expert evidence to prove the detectives'
conduct fell below the standard of care, she failed to prove an essential element of her
case. lll
Thus, judgment in her favor on the claim of negligent infliction of
emotional distress must be reversed, and judgment entered in favor of the County
instead. (McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661.)
22./ It was accepted at trial that departmental guidelines regarding treatment of a
sexual assault victim were discretionary and did not create a mandatory duty or
establish the standard of care. (E.g., RT 2844-2845.) In addition, it should be noted
that plaintiff was not simply a victim of sexual assault but also a witness with respect
to another crime, a matter which changes' the dynamics of the situation. (RT 2355.)
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