American State Bank v. List-Mayer, LIST-MAYE

• Decision Date: 29 May 1984
• Docket Number: D,No. 14285,LIST-MAYE,14285
• Citation: 350 N.W.2d 44
• Parties: AMERICAN STATE BANK, Trust Department, Special Administrator of the Estate of Ann Higbee, Plaintiff and Appellee, v. Lynette A.efendant and Appellant.
• Court: South Dakota Supreme Court

Page 44

350 N.W.2d 44

AMERICAN STATE BANK, Trust Department, Special Administrator of the Estate of Ann Higbee, Plaintiff and Appellee, v. Lynette A. LIST-MAYER, Defendant and Appellant.

No. 14285.

Supreme Court of South Dakota.

Argued Feb. 14, 1984.

Decided May 29, 1984.

Steven M. Johnson of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for plaintiff and appellee.

James E. Doyle of Doyle, Bierle, Porter & Kennedy, Yankton, for defendant and appellant.

WOLLMAN, Justice.

This is an appeal from a final judgment in a personal injury action in which plaintiff, the special administrator of the estate of Ann Higbee, deceased, ^* received a jury verdict of $17,500, and an award from the trial court of $9,385 for prejudgment interest. We affirm the judgment as modified to eliminate the award for prejudgment interest.

The first trial of the action commenced in November of 1980, and the jury returned a verdict for defendant. We reversed and remanded for a new trial. See American State Bank v. Mayer, 326 N.W.2d 110 (S.D.1982). The second trial, from which this appeal stems, was held in May of 1983.

Mrs. Higbee, who was 78 at the time, was struck by defendant's automobile at approximately 8:00 p.m. in Yankton on September 29, 1979. As she was stepping off the curb into an unmarked cross-walk, she looked to her left and right. As she proceeded through the cross-walk, she walked normally but did not look either direction.

Although the visibility and road conditions were good on the night of the accident, defendant did not see Mrs. Higbee soon enough to avoid hitting her. Defendant testified that upon seeing Mrs. Higbee she slammed on the brakes but did not sound her horn. The investigating officer observed that the front of the car was three-quarters of the way through the cross-walk and found Mrs. Higbee lying two or three feet ahead of the vehicle. Although a witness testified that he had heard the brakes squeal prior to the collision, the investigating officer found no skid marks at the scene of the accident. Mrs. Higbee suffered substantial injuries as a result of the accident.

A blood alcohol content test was administered to Mrs. Higbee at the request of the police department. At the first trial, defendant offered expert testimony indicating that at the time of the accident Mrs. Higbee's blood alcohol content was .125. We held that the test results should not have been admitted because they unfairly prejudiced the plaintiff, confused the issues, and misled the jury by putting Mrs. Higbee on the same level as intoxicated drivers who violate SDCL 32-23-1. See American State Bank v. Mayer, 326 N.W.2d at 111.

On remand, the trial court issued a pre-trial order that no testimony be permitted concerning the blood alcohol content results of the test or the fact that such a test was administered. Testimony was received, however, concerning Mrs. Higbee's drinking problem and that alcohol was smelled on her breath after the accident. The jury was instructed that the fact that a person had consumed some alcoholic beverage is a circumstance which may be considered in determining whether the person had exercised ordinary care.

Defendant contends that the trial court erred in denying the following offer of proof:

We would at this time, Your Honor, propose to stipulate or agree with counsel that the blood alcohol was withdrawn from Ann Higbee at 11:15 and given to a lab technician. And that a lab technician, if called, would testify that that blood alcohol level taken and examined by the laboratory technician would show a blood alcohol level of .08 percent. Further, that again, the blood alcohol was drawn at 11:15. We would then propose and offer to call Dr. Michael McVay, who is the son of C.B. McVay, and a member of the Yankton Medical Clinic of Yankton, South Dakota, and a board certified internal medicine doctor, and that he would testify that assuming, and the accident took place, at 8:15 on September 29th, 1979, and the blood alcohol was withdrawn at 11:15 that same evening, that he would testify that alcohol dissipates at .015 percent per hour. And that in this case there would be a three hour difference between the time of the accident and the time of withdrawal of the blood. He would further testify that under normal circumstances the dissipation would be .045 percent; and that he would further testify he would add this to the existing blood alcohol to calculate what it would have been at 8:15 P.M. on September 29th, 1979. And that he would further testify according to his calculation the blood alcohol would then be .125 percent. He would further testify that assuming the weight of Ann Higbee to be 165 pounds, from that he could calculate how many drinks necessary for a person of her weight to have a blood alcohol of .125 percent. Which would in his opinion be the equivalent of five bottles of beer or six bar drinks, each bar drink containing one ounce of 86 proof alcohol.

Dr. McVay, we offer to show, would further testify that with a blood alcohol of .125 percent, it would indicate an individual would have difficulty making quick decisions and judgments, difficulty--the person would have a difficult time in handling stress situations, decision making....

We conclude that under the "law of the case" doctrine, the trial court did not err in denying the offer of proof. This doctrine is predicated on the policy that once an issue is litigated and decided it should remain settled throughout the litigation. Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D.1976). For future cases, however, we wish to stress that our holding on the first appeal was based on the comparison that was likely made between Mrs. Higbee and one prosecuted for driving while intoxicated. The testimony in the first trial regarding blood alcohol content was given by a chemist from the state chemical laboratories, who testified regarding his connection with drug and alcohol violations and referred to determinations reported by the National Safety Council. Testimony regarding blood alcohol content, when not made so as to compare a defendant in a civil case with a defendant in a D.W.I. case, should be admissible as relevant to the issue of contributory negligence. To reject competent evidence regarding the effect of certain blood alcohol content levels upon a person's coordination, reaction time, ability to make accurate judgments and decisions, and related physical and cognitive abilities would be to engage in a form of judicial know-nothingism. That such evidence might make it more difficult for a plaintiff to counter an allegation of contributory negligence is no valid reason to exclude it. Our opinion on this point in the first appeal in this case should therefore be considered as being strictly limited to the situation presented therein, i.e., a strong association between the blood alcohol content of the injured person and the ramifications of our driving while intoxicated laws and the statutory presumptions flowing from certain blood alcohol content levels. Where competent evidence of intoxication and the effects thereof is offered in a manner unrelated to our driving while intoxicated and...