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Zempel v. Slater12/6/2005
llided.
The officer also testified that he detected a "slight" or "faint" odor of alcohol on Slater when talking with him after the accident. When he asked Slater if he had been drinking, Slater told him that he had a "couple of beers at his river house." Slater denied drinking anything on the day of the accident and denied telling the officer that he had. The officer testified that Slater passed an eye gaze nystagmus test and a portable breath test. Ultimately, the officer determined that Slater's blood alcohol content was not above the legal limit and that alcohol had not been a probable contributing cause to this accident. The officer also stated that alcohol affects different people different and has the ability to affect reaction time and perception.
Another officer at the accident scene also testified that he knew Slater had consumed one or two beers, although he could not recall why he concluded that: "it might have been the odor on him or something." He also testified that the portable breath test revealed that Slater had been drinking, but that he was not over the legal limit, which the officer mentioned had been reduced from .10 to .08 since the time of this accident. The officer went on to explain that, in his experience, alcohol affects people differently: I've been going on 15 years, and the alcohol--it just depends on the person. We can get a guy that's standing out there drunker than a skunk and he can do that field sobriety perfect, but it just depends on--and if they're an alcoholic, they can handle themselves better, so it all depends on the person.
The officer confirmed that because alcohol was not mentioned in the police report and Slater was not arrested, the other officer did not believe that alcohol contributed to the accident.
Due to closed-head injuries from the collision, Zempel and his son had no recollection of how the accident occurred. This had been the first long motorcycle ride outside of their St. Louis City neighborhood that Zempel had ever taken with one of his sons. Zempel said that "whenever" he takes his sons for rides on the motorcycle, he has them read the speed limit sign to him and then he puts the needle of the speedometer on the speed limit. He said that it was his habit when riding with his sons to always obey the speed limit: I never break the speed limit when driving a motorcycle and especially with my son--with any of my children on the back which I didn't do very often anyway. I didn't take the kids for rides. This was the only time we went for a long ride outside the neighborhood.
Zempel's son testified that he had ridden on a motorcycle with his father "maybe 20 or 30 times" and that he had never seen Zempel go over the speed limit while riding with him. He also described how his father asks him to read the speed limit signs and then he looks over his father's shoulder to see the speedometer.
At the conclusion of the Zempels' case and at the close of all evidence, Slater's motions for directed verdict were denied. The jury was instructed to assess a percentage of fault to Slater if he either failed to yield the right-of-way or failed to keep a careful lookout. The court also instructed the jury to assess a percentage of fault to Zempel if he failed to keep a careful lookout or knew or should have known that there was a reasonable likelihood of collision in time to swerve, slow down or sound a warning, but failed to do so. The jury assessed 60% of the fault to Slater and 40% of the fault to Zempel and awarded the Zempels damages. Slater's motion for judgment notwithstanding the verdict, along with other post-trial motions, was denied. He appeals, challenging various evidentiary rulings and the
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