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Zempel v. Slater12/6/2005
sufficiency of the evidence.
II. DISCUSSION
A. Evidentiary Rulings
We will not disturb the trial court's decision regarding the admission of evidence absent a clear abuse of discretion. Fairbanks v. Weitzman, 13 S.W.3d 313, 318 (Mo. App. E.D. 2000). We find no abuse of discretion in any of the court's evidentiary rulings in this case.
1. Evidence of Slater's Alcohol Consumption
Slater challenges the admission of the first officer's testimony regarding the odor of alcohol and Slater's consumption of a couple of beers. Slater contends that this evidence allowed the jury to improperly conclude that he had not seen Zempel due to his alcohol consumption. Slater argues that such a conclusion is speculative because there was no evidence as to when the alcohol was consumed and no evidence that his alcohol consumption affected his ability to perceive, see, hear and recall the accident, caused him not to see Zempel or otherwise impaired him in anyway. The prejudicial effect of the evidence, he maintains, outweighed any slight relevance and was not cured by the limiting instruction. We disagree.
Evidence of a party's alcohol consumption is admissible "if otherwise relevant and material." Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 108 (Mo. banc 1996). Here, Slater was not only a party, but also the only witness who could testify about the accident. A witness's alcohol consumption is relevant and material to his ability to see, hear, perceive and observe. Id. at 106. Any possible impairment of a witness's ability to recall is relevant to his credibility. Id. For those reasons, Slater's alcohol consumption was relevant in this case. Moreover, because the case was submitted on the parties' comparative fault, the evidence of his alcohol consumption is especially relevant. See Stewart v. Carron, 938 S.W.2d 636, 640 (Mo. App. E.D. 1997).
Stewart involved a head-on car collision, and the case was submitted on the drivers' comparative fault. Id. at 636-37, 638. Evidence of the plaintiff's intoxication was admitted into evidence, but the trial court refused to allow evidence that the defendant drank four beers at a bar before the accident. Id. at 637. The officer at the scene of the accident testified that the defendant "'was not under the influence of alcohol that in any way caused or created the accident.'" Id. at 638. Due to his injuries, the plaintiff had no recollection of the accident or the events before it. Id. at 637. This Court reversed the trial court's finding with respect to evidence of the defendant's alcohol consumption based on the "relevant and material" standard in Rodriguez: Evidence of defendant's consumption of alcohol prior to the accident bears on his ability to see, hear, perceive and observe his surroundings and would enable a jury to be more fully informed in order to determine the relative fault of the parties.
Id. at 640. This evidence was especially relevant because the defendant was the only witness who could testify about what occurred before and during the accident. Id.
As Slater points out, there is not similar evidence of the plaintiff's intoxication in this case. While that may influence a determination of the relevance of a defendant's drinking for purposes of comparative fault, the Court in Stewart did not rely on that evidence. Rather, the argument on appeal in that case, and the Court's opinion, focused on the probative value of alcohol consumption on the defendant's ability to observe his surroundings at the time of the accident. Id. at 638-39. In any case, Stewart is still instructive for its other factual similarities and to contradict Slater's suggestion that specific t
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