Minor, C. v. Shaeffers Ultrabright Carpet Cleaning ( 2018 )

J-S73026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SHAEFFER'S ULTRABRIGHT CARPET : No. 388 MDA 2017
CLEANING :
Appeal from the Judgment Entered March 20, 2017
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2011-CV-7025-CV
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED MARCH 15, 2018
Appellant, Charles Minor, appeals from the trial court’s March 11,
2016, and February 2, 2017 Orders, as made final by the March 20, 2017
entry of Judgment in favor of Appellee, Shaeffer’s Ultrabright Carpet
Cleaning, in this premises liability action. On appeal, Appellant challenges
the trial court’s Order permitting the introduction of evidence of his alcohol
consumption on the day of his fall. After careful review, we affirm.
The facts and procedural history are as follows. On March 26, 2010,
between 2:00 PM and 2:30 PM, Appellant fell down two or three steps
outside the apartment building in Harrisburg in which he resided. Appellant
fractured his ankle when he allegedly tripped and fell over a hose used by an
employee of Appellee as the employee was cleaning a second-floor
apartment.
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* Retired Senior Judge assigned to the Superior Court.
J-S73026-17
Shortly after his fall, Appellant reported to Harrisburg Hospital.
Harrisburg Hospital Emergency Department triage staff noted upon his
arrival that Appellant had been drinking alcohol.1 Appellant’s admission
record prepared by Dr. Jonas Varaly indicates Appellant’s blood alcohol
content (“BAC”) level at 0.07% at 4:58 PM.2 Appellant admitted that he had
consumed “less than a beer.”3 Harrisburg Hospital staff treated Appellant for
a fractured and dislocated ankle and administered him Dilaudid, Morphine,
Zofran, and Ativan.
On July 21, 2011, Appellant filed a Complaint raising one count of
Personal Injury (Negligence) against Appellee.4 Appellee filed Preliminary
Objections to Appellant’s Complaint on September 6, 2011. On September
20, 2011, Appellant filed a First Amended Complaint. Appellee again filed
Preliminary Objections on October 7, 2011. Appellant filed a Second
Amended Complaint on October 31, 2011. Appellee filed Preliminary
Objections to the Second Amended Complaint on November 21, 2011. On
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1Appellant’s hospital record contains the notation “ETOH today.” ETOH is an
acronym for ethyl alcohol, which is the type of alcohol found in all alcoholic
beverages.
2 Appellant testified at his deposition that he “had a couple of sips of beer.
It wasn’t even a full beer. I just opened the beer, and I think I might have
had just 2 sips.” Deposition, 6/11/13, at 44.
3 Appellant’s Brief at 18.
4 Appellant raised the same claim against his landlord, Elias Harbilas.
Appellant stipulated to Harbilas’ dismissal on December 5, 2013.
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December 12, 2011, Appellant filed a Third Amended Complaint. On April
17, 2012, Appellee filed an Answer with New Matter to Appellant’s Third
Amended Complaint. On May 22, 2012, Appellant answered Appellee’s New
Matter.
Almost four years later, on February 29, 2016, Appellant filed a Motion
in Limine to preclude argument, evidence, or testimony from Appellee’s
expert witness, Dr. James Roberts, regarding the impairment Appellant
suffered as a result of the consumption of alcohol on the day of his fall. On
March 7, 2016, Appellee filed a response to Appellant’s Motion. By Order,
docketed on March 11, 2016, the trial court denied Appellant’s Motion.
A four-day jury trial commenced on September 25, 2016. Appellant
preserved his objection to the admission of Dr. Roberts’5 testimony and
other evidence of Appellant’s impairment caused by his intoxication on the
day of his injury by placing it on the record on the first day of testimony.
On September 29, 2016, the jury returned a verdict in favor of
Appellee. Appellant filed a Post-Trial Motion on October 10, 2016. The court
denied this Motion on February 2, 2017. On February 16, 2017, Appellant
filed a Motion for Reconsideration. On March 6, 2017, before the trial court
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5 Dr. Roberts is a board-certified emergency medicine physician and
toxicologist whom the court qualified as an expert without any objection by
Appellant.
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ruled on Appellant’s Motion for Reconsideration,6 Appellant filed a Notice of
Appeal.7
Appellant raises the following two issues on appeal:
1. Did the trial court err in denying Appellant’s Motion in Limine
to exclude any testimony, evidence[,] or argument regarding
Appellant’s blood alcohol content at the time of his fall, in the
absence of corroborating evidence of Appellant’s intoxication?
2. Did the trial court err in denying Appellant’s Motion for Post-
Trial Relief, seeking a new trial, based upon the fact that
Appellee was permitted to introduce uncorroborated evidence
of Appellant’s alleged intoxication?
Appellant’s Brief at 5.
Our review of this case involves both the trial court’s denial of
Appellant’s Motion in Limine and the denial of his Motion for a New Trial. In
both cases, “we apply an abuse of discretion standard.” Coughlin v.
Massaquoi, 170 A.3d 399, 403-04 (Pa. 2017) (citation omitted).
In Coughlin, our Supreme Court recently held that “the admissibility
of BAC evidence is within the trial court’s discretion based upon general rules
governing the admissibility of evidence.” Coughlin, 170 A.3d at 400-01
(citing Pa.R.E. 401-403).
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6The trial court denied Appellant’s Motion for Reconsideration on March 11,
2017.
7Appellant filed his Notice of Appeal prematurely, as the prothonotary had
not yet entered Judgment in favor of Appellee. However, on March 20,
2017, Appellant filed a Praecipe for entry of Judgment, and we treat the
appeal as timely filed after the final Judgment was entered. See Pa.R.A.P.
905(a)(5).
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Generally, evidence is admissible if it is relevant, i.e. if it “logically
tends to establish a material fact in the case, tends to make a fact at issue
more or less probable, or supports a reasonable inference or presumption
regarding a material fact[.]” Commonwealth v. Jordan, 65 A.3d 318, 324
(Pa. 2013). However, a court may exclude relevant evidence “if its
probative value is outweighed by the likelihood of unfair prejudice.” Id. at
324-25 (citing Commonwealth v. Williams, 896 A.2d 523, 539 & n.6) (Pa.
2006).
Appellant argues that the court should have excluded evidence of his
intoxication because there was “no evidence of any impairment or
intoxication on the part of Appellant.” Appellant’s Brief at 18. Analogizing
the facts of this case to those in Rohe v. Vinson, 158 A.3d 88 (Pa. Super.
2016),8 Appellant claims that Dr. Roberts’ opinions do not form the proper
basis for the admission of evidence of Appellant’s BAC at the time of his fall.
Appellant’s Brief at 25. Appellant argues that, because Dr. Roberts formed
his opinion that Appellant was intoxicated at the time of his injury only by
calculating backwards from Appellant’s BAC at the time staff measured it at
the hospital, and did not cite any evidence of actual impairment, the
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8 In Rohe, this Court held that in order for BAC evidence to be admissible in
a motor vehicle negligence action to prove intoxication, there must be not
simply evidence of the actor’s alcohol consumption, but “other evidence
showing the actor’s conduct which suggests intoxication.” Rohe, 158 A.3d
at 96 (citing Ackerman v. Delcomico, 486 A.2d 410, 414 (Pa. Super.
1984)).
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potential prejudice caused by Dr. Roberts’ opinion outweighed its probative
value.9 Id. at 18, 23. Appellant avers that the trial court erred in replacing
the standard that “requires evidence of intoxication, with evidence of mere
consumption.” Id. at 22. He theorizes that the reason hospital staff asked
him whether he had consumed alcohol prior to his fall was not because he
was exhibiting signs of intoxication, but because they were going to give him
medications with contraindications with alcohol. Id. at 20, 24.
BAC alone is inadmissible to prove intoxication. Rohe, 158 A.3d at
96. However, it is well-settled that evidence of an actor’s BAC combined
with competent expert testimony interpreting the BAC level is admissible to
show the actor’s impairment as a result of the BAC level. Coughlin, 170
A.3d at 409.
In Coughlin, a personal injury action against a motorist who killed a
pedestrian who was crossing the street, our Supreme Court considered
whether the defendant is required to present independent corroborating
evidence of the decedent’s intoxication, in addition to expert testimony
interpreting the decedent’s BAC, before the BAC evidence was admissible.
Id. at 400. The Court held that, as noted supra, “the admissibility of BAC
evidence is within the trial court’s discretion based upon [the] general rules
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9 In support, Appellant emphasizes the videotaped deposition testimony
from his witness, Cherie Jacobs, that Appellant was not intoxicated or
impaired at the time of his fall. See, e.g., Jacobs Deposition, 9/7/16, at 45-
47.
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governing the admissibility of evidence.” Id. at 400-01. Given that
standard, the Coughlin Court concluded that, in the context of a personal
injury suit against the operator of a motor vehicle, where “an expert testifies
thoroughly regarding the effects that a given BAC has on an individual’s
behavior and mental processes, and where that expert specifically opines
that a particular BAC would render a pedestrian unfit to cross the street, we
find the probative value of such evidence outweighs its potential for unfair
prejudice.” Id. at 409.
We recognize that the facts in Coughlin are distinguishable from the
instant facts. However, the Coughlin framework for analyzing the
admissibility of the evidence of Appellant’s intoxication applies here.
In this case, Appellee raised the defense of Appellant’s comparative
negligence. In support of this defense, Dr. Roberts first calculated that,
based on Appellant’s BAC at the time hospital staff tested his blood about
2½ hours after the fall, Appellant’s BAC at the time of the fall was .106%-
.121%.10 This is approximately 1.5 times the level legally defining alcohol
intoxication in Pennsylvania.11
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10 Based on his calculations, Dr. Roberts opined that Appellant’s alcohol level
at the time of his fall was “conservatively equivalent to approximately 5-8
alcoholic drinks.” Report, 1/28/16, at 10. Dr. Roberts, thus, opined that
Appellant’s testimony that he barely drank from one can of beer “is absurd.”
Id. at 8-10.
11 An individual in Pennsylvania is considered legally intoxicated with a BAC
of 0.08%.
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In his expert report, Dr. Roberts then addressed the physical and
mental impairment associated with alcohol intoxication, noting that
“negotiating hoses on the steps requires significant mental and physical
prowess.” Report, 1/28/16, at 10. Dr. Roberts explained that “[e]thanol is
a potent central nervous system depressant and it acts like a general
anesthetic. . . . Ethanol impairs motor, physical, and mental skills and
competency by its direct effect on the brain, rendering information
acquisition and information processing slower and less efficient. Ethanol in
the blood directly impairs [ ] one’s ability to make rational judgments, avoid
obvious dangers, or perform motor, visual, and mental tasks in their normal
manner.” Id. at 9.
Dr. Roberts concluded that, in his professional medical opinion,
Appellant’s estimated BAC of 0.106%-0.121% at the time of his fall “would
have rendered him more likely to engage in dangerous and reckless
activities; be unaware or not concerned with obvious potential danger; and
significantly impair him both mentally and physically.” Id. at 13. In
particular, Dr. Roberts explained that Appellant:
would have had diminished capacity to exercise basic common
sense, would have experienced impaired physical or mental
ability to avoid being entangled in a hose, and more likely would
have been stumbling, having trouble seeing, and mentally
unaware or unconcerned of possible danger from trying to
negotiate a hose on steps. In short, he was significantly
impaired by alcohol. This altered mental and physical state was
contributory to, if not totally responsible for, his fall.
Id. at 13-14.
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As noted by the trial court in its February 2, 2017 Memorandum and
Order, Dr. Roberts testified to the findings and opinions noted above. See
Opinion, 2/2/17, at 3-4. Following our review, we conclude that the trial
court did not abuse its discretion in admitting Dr. Roberts’ expert report and
testimony as evidence of the effect that Appellant’s intoxication had on his
motor, physical, and mental skills at the time of his fall. Therefore, pursuant
to the analysis articulated in Coughlin, we conclude that the probative value
of Dr. Roberts’ specific opinion testimony about the impairment caused by
Appellant’s elevated BAC outweighed its potential prejudice. Thus, the trial
court properly denied Appellant’s Motion in Limine and Motion for a New
Trial.12
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2018
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12 We further observe that, even if the trial court erroneously admitted
evidence of Appellant’s intoxication, its admission was harmless because the
jury explicitly found no negligence on the part of Appellee.
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