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Motorists Mut. Ins. Co. v. Rockwell8/16/1990
or their fourth assignment of error, defendants allege that:
"The trial court committed prejudicial error when it improperly directed a verdict for the plaintiffs and against defendants."
Similarly, for his fourth assignment of error, plaintiff alleges that:
"The trial court committed prejudicial error when it improperly directed a verdict for the defendants against the plaintiff."
In consideration of our conclusion under the first assignments that reasonable minds could differ as to the relative degree of fault of the parties, the fourth assignments of error raised by plaintiff and defendants are well taken.
Finally, for his fifth assignment of error, plaintiff alleges that:
"The trial court committed prejudicial error in prohibiting testimony pertaining to the defendant's consumption of alcohol immediately prior to the vehicular accident herein and further erred in prohibiting cross-examination of the defendant with regard thereto in order to impeach his testimony and credibility."
Prior to the trial in this matter, defendants filed a motion in limine to exclude evidence of Howard Rockwell's consumption of alcohol on the day of the accident. The trial court initially sustained the motion and subsequently, upon plaintiff's proffer of the excluded evidence, reaffirmed its conclusion that evidence of Rockwell's alcohol consumption was inadmissible. Pursuant to Evid.R. 403(A), " lthough relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
We have reviewed the proffer of evidence made by plaintiff regarding defendant's consumption of alcohol on the day of the accident. The proffer showed that the testimony of nurses at the hospital where Rockwell received treatment after the accident would have been that Rockwell smelled of alcohol upon his arrival at the hospital and continued to smell of alcohol approximately five hours later. There was also a proffer that some of these same nurses and an attending physician would testify of their knowledge that Rockwell suffered from chronic alcoholism and that he consumed alcoholic beverages on a daily basis.
However, there is a glaring absence of a proffer of any scientific evidence to establish the defendant's blood alcohol concentration at the time of thsaccident and the expert testimony necessary to establish the significance thereof. See Parton v. Weilnau (1959), 169 Ohio St 145, 8 O.O.2d 134, 158 N.E.2d 719. See, also, State v. Scheurell (1986), 33 Ohio App.3d 217, 515 N.E.2d 629.
We therefore conclude that the trial court could properly find that the probative value of the proffered evidence was outweighed by the danger of unfair prejudice. Accordingly, plaintiff's fifth assignment of error is not well taken.
For the reasons set forth in the foregoing assignments of error, the judgment of the Court of Common Pleas of Hancock County is reversed and the cause is remanded to that court for a new trial.
Judgment reversed and cause remanded.
THOMAS F. BRYANT and MILLER, JJ., concur.
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