Thursday, July 24, 2014

DRINKS ALL AROUND: Centre Co. Trial Court Lets All Kinds of Alcohol Evidence In

Judge Thomas King Kistler of the Centre County Court of Common Pleas recently addressed pre-trial motions in limine pertaining to the admissibility of consumption of alcohol by both parties in a motor vehicle versus pedestrian accident in the case of Losch v. Bittner and GEICO, No. 2011 – Civil – 5746 and 5747 (C.P. Centre Co. May 30, 2014 Kistler, J.).

According to the opinions, the consolidated cases involved a pedestrian who was struck while standing or lying on a highway at 1 a.m. in the morning.  Although the pedestrian claimed he ended up on the highway due to first being struck by a phantom vehicle that fled the scene (giving rise to a UM claim against GEICO), followed by the pedestrian then being run over by the tortfeasor defendant’s vehicle, there was evidence gathered in discovery that the Plaintiff had been drinking alcohol during the evening leading up to the accident.
There was also evidence gathered during discovery in this matter that the tortfeasor defendant driver had also been separately drinking during the evening in question.  The tortfeasor hit the pedestrian and continued on to his nearby home. 

The next day, the driver called 911 and reported seeing body on the roadway but did not mention that he had hit the pedestrian.  During the subsequent investigation by the police, the tortfeasor defendant admitted that he had indeed hit the pedestrian.
GEICO prevailed on its motion in limine seeking permission to offer evidence at trial on the pedestrian’s alleged intoxication so as to support GEICO’s argument of contributory negligence on the part of the pedestrian plaintiff.  Judge Kistler’s opinion on that motion in limine provides a thorough review of the case law on the analysis of whether such evidence should be admitted, or excluded as prejudicial.  Here the evidence of intoxication (slurred speech, odor of alcohol, BAC in excess of legal limit) was found admissible.
Judge Kistler also granted the pedestrian plaintiff’s motion in limine to offer into evidence admissions by the defendant driver that he had a few beers to drink during the evening leading up to the accident even though there was no other substantial evidence presented that the driver was intoxicated at the time of the accident. 
However, Judge Kistler, who condemned the driver for leaving the scene and not immediately advising the 911 operator that he had hit the pedestrian, took a novel approach by finding that it was within his broad discretion to find that the defendant driver’s drinking earlier that evening was admissible (even without evidence of intoxication) because the driver had left the scene and basically destroyed the evidence by not reporting the accident until the next day and by not submitting to police scrutiny at the time of the accident.
The court noted that it had the discretion to infer that the driver's fleeing of the scene evidenced the driver's consciousness of guilt or an attempt to conceal his inebriation.
It was otherwise reported that, with all of this intoxication evidence being allowed in, the case was settled prior to trial. (Perhaps this was a motivating factor in the judge allowing all of the evidence in and thereby putting pressure on all of the parties involved.).
Anyone wishing to review the Losch decision pertaining to the admission of intoxication evidence against a plaintiff on a contributory negligence theory, click HERE.
Judge Kistler's decision allowing the admissibility of evidence that a defendant driver who fled the scene was drinking alcohol in the evening leading up to the accident may be viewed at this LINK.
I send thanks to Attorney Gary Weber of the Williamsport law firm of Mitchell Gallagher  for bringing these decisions to my attention.

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