Couts v. Ghion

• Decision Date: 31 October 1980
• Parties: John T. COUTS, Administrator of the Estate of John R. Couts, Deceased, Appellant, v. Dean P. GHION v. REFRESHMENT PRODUCTS, INC., a corporation, and Holiday House, Inc., a corporation.
• Court: Pennsylvania Superior Court

Page 1184

421 A.2d 1184

281 Pa.Super. 135

John T. COUTS, Administrator of the Estate of John R. Couts, Deceased, Appellant, v. Dean P. GHION v. REFRESHMENT PRODUCTS, INC., a corporation, and Holiday

House, Inc., a corporation.

Superior Court of Pennsylvania.

Argued Nov. 15, 1979.

Filed Sept. 5, 1980.

Reargument Denied Oct. 31, 1980.

Thomas Hollander, Pittsburgh, for appellant.

Aura N. Pershing, Greensburg, for Ghion, appellee.

Thomas W. Smith, Pittsburgh, submitted a brief on behalf of Refreshment Products, Inc., Appellee.

Richard L. Rosenzweig, Pittsburgh, for Holiday House, appellee.

Before SPAETH, HOFFMAN and VAN der VOORT, JJ.

HOFFMAN, Judge:

Appellant contends that the lower court erred in (1) granting summary judgment in favor of appellee Refreshment Products, Inc.; (2) refusing to take off a compulsory nonsuit in favor of appellee Holiday House, Inc.; and (3) excluding evidence of breathalyzer and blood test results. We agree with the latter two contentions and, accordingly, reverse the order of the lower court and remand for a new trial.

Appellant, administrator of the estate of John R. Couts, brought wrongful death and survival actions to recover damages allegedly resulting from Couts' death in an automobile accident. The facts surrounding the accident are as follows: On February 12, 1977, appellee Dean P. Ghion (Ghion), ¹ attended a business meeting at a restaurant and motel operated by appellee Holiday House, Inc. (Holiday House), a licensee of the Pennsylvania Liquor Control Board. The meeting was held by appellee Refreshment Products, Inc. (Refreshment Products), a soft drink distributor for whom Ghion was a dealer. Refreshment Products had arranged with Holiday House for the latter to provide alcoholic beverages for those attending this meeting. Between 2:00 and 3:30 in the afternoon, Ghion consumed eight cocktails at the meeting. ² Subsequently, Ghion ate lunch, and the meeting ended. At approximately 5:00 p. m. Ghion went to a bar located elsewhere in the Holiday House restaurant where he was served two additional cocktails. ³ Ghion finished the last of these drinks at approximately 5:15 p. m. and then left the bar in his Lincoln Continental automobile. Ghion did not consume alcoholic beverages at any other location before the accident.

The accident occurred at approximately 6:00 p. m. on the same day on Route 30 in North Huntingdon Township, Westmoreland County. Road surfaces were wet from an earlier rain and continuing drizzle. Ghion was driving east on Route 30 when his automobile suddenly crossed the double yellow divider line, proceeded into the westbound traffic lanes for 300 to 400 feet, and collided with the Toyota pickup truck which the decedent was driving. Ghion did not apply his brakes prior to the collision. Ghion's car returned briefly to an eastbound lane, crossed back over into the westbound lanes, ran off the roadway, and ultimately came to a rest approximately thirty feet north of the roadway in a cemetery. Both vehicles were damaged extensively, and the decedent died at the scene. Although it was dark at the time of the accident, Ghion had been driving without the use of his automobile lights.

Within minutes after the accident a North Huntingdon Township police officer arrived at the scene to investigate. As he approached Ghion he observed Ghion walking with a staggering gait, and he detected a strong odor of alcohol. When the officer asked to see Ghion's driver's license and vehicle registration card, Ghion fumbled through his wallet, dropped some cards, and spoke with a slur as though intoxicated.

In addition to suing Ghion for his alleged negligent driving, appellant sought damages from Refreshment Products and Holiday House based on their alleged negligence in serving Ghion alcoholic beverages while Ghion was visibly intoxicated. The lower court granted summary judgment to Refreshment Products and a compulsory nonsuit in favor of Holiday House. Following denial of his motion to set aside these actions, appellant took this appeal.

Appellant contends that the lower court erred in granting summary judgment in favor of Refreshment Products. As noted above, appellant based his claims against both Refreshment Products and Holiday House on their alleged negligence in serving Ghion alcoholic beverages while he was visibly intoxicated. Section 4-493(1) of the Liquor Code, 47 P.S. § 4-493(1), provides that it is unlawful

(f)or any licensee (of the Pennsylvania Liquor Control Board) ..., or any employe, servant or agent of such license ... or any other person to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated.

Our Supreme Court has held that "a violation of this statute is negligence per se and, if the violation was the proximate cause of plaintiff's injury, defendant is liable for it." Majors v. Brodhead Motel, 416 Pa. 265, 268, 205 A.2d 873 (1965). See also Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963). Despite the language of § 4-493(1) of the Liquor Code that it is unlawful for "any ... person" to provide intoxicating beverages to a visibly intoxicated person, our Supreme Court has refused to impose civil liability for violation of this provision on persons who are not licensed and engaged in the sale of intoxicants. Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973). Refreshment Products is not a licensed entity so engaged. Because of this fact, the lower court found that Refreshment Products could not be held liable for decedent's death and granted its motion for summary judgment. We find no error in this ruling and therefore affirm the grant of summary judgment for Refreshment Products. ⁴

Unlike Refreshment Products, Holiday House, a liquor licensee, may be held civilly liable for injuries proximately resulting from its unlawful sale of alcoholic beverages to a visibly intoxicated person. Majors v. Brodhead Hotel, supra; Jardine v. Upper Darby Lodge No. 1973, supra; Smith v. Clark, supra. Accordingly, as the lower court correctly noted, Holiday House's liability hinges on whether Ghion was visibly intoxicated when he was served his last drink at the Holiday House bar, forty-five minutes to one hour before the accident occurred. Even if Ghion was intoxicated at the time of the accident and his intoxication proximately caused decedent's death, Holiday House cannot be held liable unless Ghion was visibly intoxicated when served at the Holiday House bar. The lower court stated in its opinion that appellant failed to present any direct evidence suggesting that Ghion was visibly intoxicated at this critical time. Consequently, the court granted and refused to set aside a compulsory nonsuit in favor of Holiday House. Appellant contends that there was sufficient evidence to warrant submitting the issue to the jury and therefore that the lower court erred in granting the nonsuit. We agree.

"On appeal from a compulsory non-suit the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff's favor. A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion." Paul v. Hess Bros., 226 Pa.Super. 92, 94-95, 312 A.2d 65, 66 (1973) (citations omitted). In a trespass case, a plaintiff need not exclude every other reasonable possibility that could have caused the accident. "It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability." Jones v. Treegoob, 433 Pa. 225, 230, 249 A.2d 352, 355 (1969).

Gill v. McGraw Electric Co., 264 Pa.Super. 368, 378, 399 A.2d 1095, 1100 (1979) (quoting Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 135, 359 A.2d 822, 825 (1976)).

Viewing the evidence in light of these principles, we conclude that the issue of whether Ghion was visibly intoxicated when he was served his last drink at the Holiday House bar should have been submitted to the jury. Evidence presented at trial established that Ghion had consumed a substantial amount of alcohol before being served his last drink; that Ghion had driven erratically and without using his car's lights in the dark; and that Ghion had appeared intoxicated to the investigating police officer. Additionally, improperly excluded evidence of Ghion's blood alcohol content (see infra) would have lent further support to an inference that Ghion may have been visibly intoxicated at the Holiday House bar. Despite the lack of direct evidence bearing on Ghion's condition when he was served his last drink, we think that the jury could have reasonably concluded that he was visibly intoxicated at that time. Accordingly, we hold that the lower court erred in refusing to take off the compulsory nonsuit entered in favor of Holiday House.

Appellant contends finally that the lower court erred in excluding evidence of the results of breathalyzer and blood tests taken after the accident. A breathalyzer test administered to Ghion at 8:31 p. m., approximately two-and-one-half hours after the accident, indicated that Ghion's blood alcohol content at the time was .12 percent. A test performed on blood drawn from Ghion at 8:43 p. m. the same day also showed a blood alcohol content of .12. ⁵ The trial court refused to admit the results of these tests, as well as the opinion of a local police officer that, based on these test results, Ghion's blood alcohol content was .14 at the time of the accident.

The issue of the admissibility of blood alcohol test results most frequently arises in cases in which reckless or negligent operation of an...