City of Santa Fe v. Komis

RANSOM, Chief Justice

(specially concurring).

I concur in the foregoing opinion notwithstanding reservations I harbor with respect to evidence of polls showing a lay opinion that residential property near the bypass would sell for between eleven and thirty percent less and would decrease in value. We properly hold that fear which impacts on market value may be shown without proving the reasonableness of that fear. While the nature and extent of fear may be shown through polls, we should emphasize that the actual impact on market value requires expert opinion testimony and cannot rest on the speculation of those who are suffering from what well may be irrational fear. Hansen v. Skate Ranch, Inc., 97 N.M. 486, 491, 641 P.2d 517, 522 (Ct.App.1982) (applying Evidence Rule 11-701 which specifically requires that lay testimony be rationally based); Ryan v. Kansas Power & Light Co., 249 Kan. 1, 815 P.2d 528 (1991). As Ryan states:

The general purpose of allowing expert testimony on fear of electrical transmission lines is to show the factors considered by the witness in reaching an estimated value of the property and damages suffered. Non-expert witnesses are not qualified to testify concerning the value of the property. However, a non-expert qualified witness may corroborate and provide foundation testimony for the expert testimony on damages. A landowner who is qualified to testify as to the value of his own property is prohibited from testifying about personal fears of electrical transmission lines and [their] effect on the value of the property. However, the landowner and other non-expert witnesses are not precluded from testifying about fear in the marketplace once the individual has been qualified by showing he has knowledge of such fears other than his own. Fear in the marketplace is not a technical subject requiring professional training to discern. Rather, it is dependent upon knowing the opinion of others as to fear.

Id., 815 P.2d at 535 (emphasis added) (citation omitted).

I do agree with my colleagues, nonetheless, that error in admitting this and other evidence appears not inconsistent with substantial justice in view of all the evidence at trial. It is the well-founded policy of this Court that, “at every stage of the proceeding [it] must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” SCRA 1986, 1-061.