HomeMy WebLinkAbout93-0091 CivilVICKI and THOMAS A. THORSON,
Plaintiffs
V.
VICTORIA F. FINKENBINDER and
UNITED TELEPHONE CO. OF PA.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 91 CIVIL 1993
IN RE: PLAINTIFFS' MOTION IN LIMINE
BEFORE OLER, J
ORDER OF COURT
AND NOW, this 22 o d day of Sep_'U+y L c t , 1993, after careful consideration of
Plaintiffs' Motion in limine to preclude evidence of alcohol consumption, and for the
reasons stated in the accompanying Opinion, the motion is DENIED.
BY THE COURT,
J. Wesley Oler, J •. J.
Eric J. Wiener, Esq.
319 Market Street
P.O. Box 1177
Harrisburg, PA 17108
Attorney for Plaintiffs
Jeffrey B. Rettig, Esq.
305 North Front Street
Sixth Floor
P.O. Box 999
Harrisburg, PA 17108
Attorney for Defendants
:rc
VICKI and THOMAS A. THORSON, IN THE COURT OF COMMON PLEAS OF
Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
VICTORIA F. FINKENBINDER and
UNITED TELEPHONE CO. OF PA.,
Defendants NO. 91 CIVIL 1993
IN RE: PLAINTIFFS' MOTION IN LIMINE
BEFORE OLER, J.
OPINION AND ORDER OF COURT
Oler, J.
At issue in this negligence case is whether evidence of alcohol consumption by
an injured plaintiff will be admissible at trial. For the reasons stated in this Opinion,
the Court rules that it will.
Procedural History
The present action was commenced on January 12, 1993, by the filing of a
complaint by Thomas A. Thorson (Injured Plaintiff) and Vicki Thorson (Plaintiff
Spouse) against Victoria F. Finkenbinder (Defendant Driver) and United Telephone
Co. of Pennsylvania (Defendant Employer). Subsequent pleadings consisted of an
amended complaint, an answer with new matter, and a reply to new matter. The case
has been scheduled for trial during the November, 1993, trial term.'
On July 16, 1993, Plaintiffs filed a motion in limine to preclude Defendants from
"making reference to, inference to, offering testimony of, or otherwise introducing
evidence of Plaintiff's consumption of alcohol prior to being struck by Defendant's
1 Order of Court, August 10, 1993 (Sheely, P.J.).
No. 91 Civil 1993
vehicle."' A response to the motion was filed by Defendants, and a hearing on the
matter was held by the undersigned judge on September 15, 1993. Evidence presented
at the hearing included transcripts of depositions of various fact witnesses and two
expert reports on the subject of alcohol consumption and its effects.
Statement of Facts
This case arises out of a pedestrian/motor vehicle accident occurring on South
Hanover Street in the Borough of Carlisle, Cumberland County, Pennsylvania, on
Wednesday, February 12, 1992, at 9:30 p.m. Injured Plaintiff, a 49 -year-old male, was
struck while crossing the street by an automobile driven by Defendant Driver in the
course of her employment with Defendant Employer. Plaintiffs' claims are based upon
alleged negligence of Defendant Driver; Defendants have interposed a defense of
contributory negligence on the part of Injured Plaintiff, inter alia.
From the hearing on Plaintiffs' motion to exclude evidence of alcohol
consumption, it appears that testimony will be available to Defendants tending to show
the following:3 (a) that Injured Plaintiff, a laid -off estimator for an upholstery
2 Plaintiffs' Motion in Limine, at 3. A second pre-trial motion of Plaintiffs, regarding
discovery, was disposed of following a hearing. Order of Court, September 15, 1993 (Oler, J.).
3 By its summary, the Court is not, of course, expressing an opinion as to the credibility
and weight to be accorded such testimony.
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No. 91 Civil 1993
company,4 was a frequent patron of a bar called the Towne Tavern in the 200 block
of South Hanover Street in the Borough of Carlisle;' (b) that on Wednesday, February
12, 1992, he stopped in the upholstery shop where he used to work, which was next
to the bar, with a six-pack of beer;' (c) that a little before 5:00 p.m. he went to the
bar, where he drank without eating until about 9:30 p.m.;' (d) that during this time
his drinking included from five' to eight beers;' (e) that he became involved in a
disagreement about the wisdom of his daughter's being taught Greek Mythology in
school when she was failing English and Math, and was sufficiently upset about it that
another patron offered to buy him a beer;10 (f) that by 9:30 p.m. his blood alcohol
4 Plaintiffs' Exhibit 1, Hearing on Plaintiffs' Motion in Limine, September 15, 1993,
Deposition of Terry D. Fritz, N.T. 4-6 (hereinafter Plaintiffs' Exhibit _, Deposition of
N.T. _). The lay-off was due to lack of work. Id., N.T. 6.
5 Plaintiffs' Exhibit 1, Deposition of Terry D. Fritz, N.T. 17; Deposition of Charles M.
Chronister, N.T. 3, 30; Deposition of Richard C. Fritz, N.T. 11-12.
6 Plaintiffs' Exhibit 1, Deposition of Richard L. Fritz, N.T. 14-15; Deposition of Charles
M. Chronister, N.T. 18. This beer was never opened. Id., Deposition of Richard L. Fritz, N.T.
15.
7 Plaintiffs' Exhibit 1, Deposition of Richard L. Fritz, N.T. 16; 23; Deposition of Charles
M. Chronister, N.T. 16, 28; Deposition of Tammy Darr Darhower, N.T. 10; Deposition of Terry
D. Fritz, N.T. 40; Deposition of Douglas E. Pfahl, N.T. 14.
s Plaintiffs' Exhibit 1, Deposition of Charles M. Chronister, N.T. 18 (bottles).
s Deposition of Richard L. Fritz, N.T. 21-22 (cans).
10 Plaintiff's Exhibit 1, Deposition of Charles M. Chronister, N.T. 13-14, 19, 23, 27;
Deposition of Tammy Darr Darhower, N.T. 8.
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No. 91 Civil 1993
level was at about .15% weight by volume;" (g) that at this level, in one expert's
opinion, he "was unable to safely cross a road," due to "impaired night vision, impaired
coordination, and inability to judge distance" and diminished judgment with regard to
"appropriately estimating danger and the normal precautions that one takes in crossing
a busy highway";12 (h) that at this time he exited the bar and proceeded directly
across Hanover Street, a four -lane road with additional lanes for parking on each side
and a 25 -mile -per -hour speed limit, without hesitation;13 (i) that jaywalking was
contrary to his normal practice and occurred notwithstanding the availability of a
crosswalk less than 100 feet away;14 0) that he kept his head down "the whole time,"
looking in the direction of his feet, walking at a very fast pace and swinging his arms
"very, very wide," exhibiting "an odd type of walk";15 (k) that he crossed the center
line of the road and strode directly into the path of Defendant Driver's oncoming
11 Defendants' Exhibit 1 (Opinion of Lawrence J. Guzzardi, M.D., based upon result of
blood alcohol test on blood plasma drawn at 11:30 p.m.).
" Defendants' Exhibit 1. Plaintiffs' expert, although estimating Injured Plaintiff's blood
alcohol level at the time of the accident to be "0.13-0.14%" and conceding that "there is some
impairment to judgment, perception, coordination, response time and the usual sense of care
and caution at the BAC calculated," has expressed the opinion that he "was not sufficiently
impaired, due to the consumption of alcohol, to be a danger to himself as he crossed South
Hanover Street." Plaintiffs' Exhibit 2 (Opinion of John J. Spikes, Ph.D., DABFT).
13 Plaintiffs' Exhibit 1, Deposition of Paul E. Bolen, N.T. 8-14, 22, 30; Deposition of Penny
D. Bolen, N.T. 9; Deposition of Douglas E. Pfahl, N.T. 39.
14 Plaintiffs' Exhibit 1, Deposition of Douglas E. Pfahl, N.T. 39-41, 52; Deposition of
Tammy Darr Darhower, N.T. 17, 22-24.
15 Plaintiffs' Exhibit 1, Deposition of Paul E. Bolen, N.T. 21, 23, 37; Deposition of Penny
D. Bolen, N.T. 12. Witnesses said that he was not "staggering" or walking "erratically."
Plaintiffs' Exhibit 1, Deposition of Paul E. Bolen, N.T. 40; Deposition of Penny D. Bolen, N.T.
12.
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No. 91 Civil 1993
vehicle, notwithstanding that her car had bright lights, that the road was straight, and
that it appeared that if he did not stop he would be hit;18 (1) that he was wearing
dark clothing;" and (m) that he was hit in the right lane by the right part of
Defendant Driver's car. 18
Discussion
The general rule on admissibility of evidence of a pedestrian's consumption of
alcohol when the pedestrian has been struck by an automobile has been stated as
follows:
[E]vidence tending to establish intoxication on the part
of a pedestrian is inadmissible unless such evidence proves
unfitness to be crossing the street. Pennsylvania courts
have gone to great lengths to enforce this rule.
Consequently, no reference should be made to a pedestrian's
use of alcohol unless there is evidence of intoxication or
copious drinking on the part of the pedestrian; for example,
evidence that the injured party was staggering or had liquor
on his breath gives support to such an inference.
Kriner v. McDonald, 223 Pa. Super. 531, 533-34, 302 A.2d 392, 394 (1973). The reason
for the rule is that "[e]vidence of drinking or presence in a bar both `give rise to the
insidious inference that the individual involved was intoxicated or under the influence
is Plaintiffs' Exhibit 1, Deposition of Paul E. Bolen, N.T. 9, 30, 35; Deposition of Douglas
E. Pfahl, N.T. 38.
17 Plaintiffs' Exhibit 1, Deposition of Paul E. Bolen, N.T. 8, 21; Deposition of Penny D.
Bolen, N.T. 7, 16; Deposition of Douglas E. Pfahl, N.T. 42-43.
18 Plaintiffs' Exhibit 1, Deposition of Douglas E. Pfahl, N.T. 18, 34, 38.
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No. 91 Civil 1993
of alcohol[,] which inference[,] without some proof of intoxication[,] has no role to play
in any case.""'
On the other hand, under Section 3550 of the Vehicle Code it is against the law
for a pedestrian "who is under the influence of alcohol ... which renders the pedestrian
a hazard ... [to] walk or be upon a highway except on a sidewalk.i20 Given this
standard of conduct, a court must be careful that the rule designed to prevent unfair
prejudice to a plaintiff pedestrian is not utilized to the unfair prejudice of a defendant
driver. Magaro v. Robinson, 109 Dauphin Co. 305, 306 (1989) (Schaffner, J.), affd.
402 Pa. Super. 663, 578 A.2d 44 (1990), appeal dismissed, 530 Pa. 200, 607 A.2d 1074
(1992). Thus, where "there is evidence which could reasonably establish that [a
pedestrian] was intoxicated," it becomes appropriate "to place before the jury the issue
of whether he was so influenced by alcohol to be a 'hazard."' Ackerman v. Delcomico,
336 Pa. Super. 569, 575, 486 A.2d 410, 413 (1984).
A proper resolution of the issue of the admissibility of evidence of alcohol
consumption by a pedestrian is, of course, dependent upon the facts of each case.
However, several recent decisions are instructive. In Emerick v. Carson, 325 Pa.
Super. 308, 472 A.2d 1133 (1984), the Pennsylvania Superior Court upheld admission
of evidence of a pedestrian's consumption of alcohol prior to an accident, where an
is Kriner v. McDonald, 223 Pa. Super. 531, 533, 302 A.2d 392, 394 (1973), quoting
Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d 508, 509 (1969).
20 75 Pa. C.S. §3550.
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No. 91 Civil 1993
expert testified that his blood alcohol level would have been .22% at the time of the
accident and that at such a level he would have been impaired, the pedestrian had
placed himself in an obviously hazardous position on a dark roadway, his breath
contained a strong odor of alcohol, and he admitted that he had had "quite a bit to
drink."
In Ackerman v. Delcomico, 336 Pa. Super. 569, 486 A.2d 410 (1984), the
Superior Court approved admission of evidence of a pedestrian's drinking, including
his blood alcohol level, where the test result was .195%, he admitted drinking heavily
the afternoon of the accident, which occurred at 11:00 p.m., and after the accident his
speech was slurred and he displayed an unusually low level of alertness —
notwithstanding that no expert testimony was introduced to interpret the test result
and that prior to the accident he was said to display no slurring of speech, staggering
gait, or swaying. "Looking at all the evidence," the Court stated, "there is much more
than a suggestion of intoxication...." Id. at 575, 486 A.2d at 413.
And in Magaro v. Robinson, 109 Dauphin Co. 305 (1989), affd, 402 Pa. Super.
663, 578 A.2d 44 (1990), appeal dismissed, 530 Pa. 200, 607 A.2d 1074 (1992), Judge
Schaffner of the Dauphin County Court held admissible evidence of a pedestrian's
consumption of alcohol, where he had consumed six to eight beers during the
afternoon and evening prior to a 1:15 a.m. accident, had exited a bar, and was hit
crossing the street. In an opinion which carefully examined the history of
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No. 91 Civil 1993
Pennsylvania's rule as to admissibility of evidence of alcohol consumption, Judge
Schaffner discerned a "transformation" in the rule's application, noting that "the recent
cases ... permit blood alcohol evidence either alone, or supported by very, very little
other objective evidence of a person's physical impairment because of drinking." Id.
at 313.
Application of law to facts. In the present case, evidence available to the
Defendants as to Injured Plaintiff's drinking for four and a half hours prior to the
accident, his conversation in the bar, his high blood alcohol level and expert opinion
as to its effect, his jaywalking contrary to custom, and his peculiar gait and placement
of himself on a four -lane road in front of an oncoming vehicle at night with no
apparent precaution lead the Court to conclude that in this case there is evidence
which could reasonably establish that Injured Plaintiff was intoxicated, and that it is
therefore appropriate to place before the jury the issue of whether he was so influenced
by alcohol as to be a hazard.21 For this reason, the following Order will be entered:
ORDER OF COURT
AND NOW, this.22/2,/day of,4�;�1993, after careful consideration of
Plaintiffs' Motion in limine to preclude evidence of alcohol consumption, and for the
" See Ackerman v. Delcomico, 336 Pa. Super. 569, 575, 486 A.2d 410, 413 (1984).
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No. 91 Civil 1993
reasons stated in the accompanying Opinion, the motion is DENIED.
Eric J. Wiener, Esq.
319 Market Street
P.O. Box 1177
Harrisburg, PA 17108
Attorney for Plaintiffs
Jeffrey B. Rettig, Esq.
305 North Front Street
Sixth Floor
P.O. Box 999
Harrisburg, PA 17108
Attorney for Defendants
:rc
BY THE COURT,
s/ J. Wesley Oler, Jr
J. Wesley Oler, Jr. J.
D