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Taylor v. Racetrac Petroleum Inc.6/10/1999
In the Court of Appeals of Georgia
JO -025
Ronald Steed was killed and David Telenko was injured when the car they were in crashed into a utility pole. Robin Taylor, Steed's sister and the administratrix of his estate, along with his parents, Mack and Bobbie Steed, sued RaceTrac Petroleum, Inc., claiming it is liable for Steed's death because Telenko, who was under the lawful drinking age of twenty-one, was driving the car while under the influence of beer that he had bought at a RaceTrac store. RaceTrac denied liability, contending, among other things, that Steed, not Telenko, was driving at the time of the accident, and that even if Telenko was driving, Steed assumed the risk of injury by riding with him. The case was tried before a jury, which returned a verdict in favor of RaceTrac.
Taylor and the Steeds appeal from the judgment entered on the verdict. They challenge the admission of evidence regarding Steed's prior drug and alcohol use and his conduct on prior occasions, the exclusion of an emergency room statement made by Telenko and the jury charge on assumption of risk.
The challenge to the evidence of Steed's prior drug and alcohol use and his prior conduct is correct, and we reverse the judgment on that ground. Although the challenges to the exclusion of Telenko's statement and the assumption of risk jury charge are without merit, we address those issues because they are likely to arise again on the retrial of the case.
1. Taylor and the Steeds assert the trial court erroneously admitted evidence of Steed's prior drug and alcohol use, his reckless driving on other occasions and his conduct on prior occasions. We agree with the assertion.
The trial court allowed RaceTrac to introduce testimony from Telenko that Steed had previously taken LSD and smoked marijuana, that Steed had drunk alcohol with his parents on prior occasions, that Steed liked to engage in risky behavior and that on prior occasions Steed had driven fast and not obeyed traffic laws.
The court also allowed RaceTrac to elicit testimony from Meghan Robbins, a friend of both Steed and Telenko, that Steed was part of a group that took LSD, drank beer, and smoked marijuana; that Steed and his friends sometimes drank at the Steeds' house; that Steed engaged in risky behavior; that he once destroyed a pay phone; and that Steed was involved in a fight during a school spring break.
The general character of parties and especially their conduct in other transactions are irrelevant matters. OCGA ยง 24-2-2. A party's conduct on the occasion at issue in the case may be proved only by the facts of that event and not by evidence of the party's prior acts or general character for carelessness or recklessness. Feinberg v. Durga, 189 Ga. App. 733, 735 (3) (377 SE2d 33) (1988). Such evidence is not probative of the issue at hand and may prejudice the jury against that party as to the question of liability in the particular case. Whorton v. Boatwright, 233 Ga. App. 369, 370 (504 SE2d 216) (1998); Whidby v. Columbine Carrier, 182 Ga. App. 638, 639 (1) (356 SE2d 709) (1987), overruled on other grounds, 194 Ga. App. 72 (389 SE2d 560) (1989). One party is not permitted to influence the jury to find against the other party on account of some act which he may have committed on another occasion, in a different situation and with other parties. Leo v. Williams, 207 Ga. App. 321, 322 (428 SE2d 108) (1993).
In the instant case, the evidence of Steed's alleged prior drug and alcohol use, alleged reckless driving on other occasions and alleged violent acts on other occasions are irrelevant to the question of liability for the accident in this case. There
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