Kennedy v. Griffin, 3743.

• Decision Date: 03 February 2004
• Docket Number: No. 3743.,3743.
• Citation: 595 S.E.2d 248,358 S.C. 122
• Parties: Richard N. KENNEDY, Appellant, v. Scott Edward GRIFFIN and Dick Simon Trucking, Inc., Respondents.
• Court: South Carolina Court of Appeals

358 S.C. 122

595 S.E.2d 248

Richard N. KENNEDY, Appellant, v. Scott Edward GRIFFIN and Dick Simon Trucking, Inc., Respondents.

No. 3743.

Court of Appeals of South Carolina.

Heard November 5, 2003.

Filed February 3, 2004.

Rehearing Denied March 18, 2004.

Kenneth L. Holland, of Gaffney, for Appellant

William S. Brown, of Greenville, for Respondent(s).

L. Sidney Connor, IV, of Surfside Beach, for Appellant.

Jerry Jay Bender and Robert L. Widener, both of Columbia; L. Morgan Martin, Linda Weeks Gangi and Michael W. Battle, all of Conway; Scott B. Umstead, Thomas C. Brittain and William Edward Lawson, all of Myrtle Beach; and William C. Barnes, of Florence, for Respondents.

CONNOR, J.:

Richard Kennedy appeals the trial judge's denial of his motion for a new trial based upon: (1) the admission of a blood test showing marijuana was in his system at the time of his automobile accident; and (2) the trial judge's jury instruction regarding the per se negligence statute. We reverse and remand.

FACTS

On May 29, 1998, Kennedy was driving his pickup truck on U.S. Route 29 in Cherokee County, approaching the intersection with Secondary Road 164. Scott Griffin was driving an eighteen-wheeler truck in the scope of his employment with Dick Simon Trucking, Inc., on Secondary Road 164. At the intersection, Griffin pulled out in front of Kennedy to make a left turn onto U.S. Route 29. Kennedy's truck collided with the rear set of tires on the trailer of Griffin's truck. The weather was clear on the day of the accident.

Maxie Littlejohn witnessed Kennedy applying his brakes at the last second before impact, causing Littlejohn to wonder why Kennedy did not slow down to avoid the accident. The investigating officer found short skid marks in Kennedy's lane, suggesting Kennedy was not paying attention or panicked and froze before slamming on the brakes. Griffin testified that he saw Kennedy's truck and thought he had a safe distance to make the turn. Kennedy testified that Griffin bolted out in front of him, blocked both lanes of traffic, and then slammed on his brakes, forcing Kennedy to apply his brakes and swerve.

Kennedy was taken to the hospital by ambulance for treatment of his injuries. As part of a routine practice when treating victims of automobile accidents, the emergency room physician performed a blood test on Kennedy to determine if any substances were present in his system that would react adversely to medicines administered to him. The results of the blood test indicated the presence of marijuana in Kennedy's blood stream. The test results did not indicate the level of drugs in Kennedy's system or how long the drugs had been in his system. Nothing in the record indicates that marijuana was found in or around Kennedy's vehicle or that Kennedy smelled of marijuana.

Kennedy filed suit against Griffin and Dick Simon Trucking, Inc., seeking to recover damages for negligence. Prior to trial, Kennedy filed a motion in limine to exclude the admission of the blood test analysis showing the presence of marijuana in his system. The judge denied the motion. Kennedy's treating physician later testified before the jury that the toxicology report showed Kennedy had marijuana in his system, but the report did not indicate the level of intoxication or how long the marijuana had been in his system.

The trial judge instructed the jury on the law of negligence per se under the driving under the influence statute. The jury returned a verdict finding Kennedy was seventy percent at fault for the accident and Griffin and Dick Simon Trucking were thirty percent at fault. Kennedy, thus, was unable to recover any damages. He moved for a new trial, and the trial judge immediately denied the motion. Kennedy appeals.¹

ISSUES

I. Did the trial judge err in allowing the admission of evidence that Kennedy had marijuana in his system?

II. Did the trial judge err in charging the jury on the law of negligence per se?

SCOPE OF REVIEW

The denial of a motion for a new trial is within the trial judge's discretion and will not be reversed on appeal absent an abuse of discretion. Haselden v. Davis, 341 S.C. 486, 495, 534 S.E.2d 295, 300 (Ct.App.2000), aff'd, 353 S.C. 481, 579 S.E.2d 293 (2003).

DISCUSSION

I. Admission of Marijuana Evidence

Kennedy argues he was entitled to a new trial due to the admission of the toxicology test results into evidence because the probative value of the results was substantially outweighed by undue prejudice.

"Evidence is relevant and admissible if it tends to establish or make more or less probable some matter in issue." Hoeffner v. The Citadel, 311 S.C. 361, 365, 429 S.E.2d 190, 192 (1993); Rule 401, SCRE; Rule 402, SCRE. However, otherwise relevant evidence may be excluded where its probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Rule 403, SCRE. "Unfair prejudice means an undue tendency to suggest a decision on an improper basis." State v. Owens, 346 S.C. 637, 666, 552 S.E.2d 745, 760 (2001). A trial judge's decision to admit or exclude evidence is within his discretion and will not be disturbed unless an abuse of discretion occurs. Pike v. S.C. Dep't of Transp., 343 S.C. 224, 234, 540 S.E.2d 87, 92 (2000).

In support of their argument that the trial judge did not err in admitting the blood test results, Griffin and Dick Simon Trucking cite Gulledge v. McLaughlin, 328 S.C. 504, 492 S.E.2d 816 (Ct.App.1997). In Gulledge, this Court discussed the admissibility of blood test results in a car accident case showing the deceased had a blood alcohol content (BAC) of.166. The deceased's spouse argued the BAC test result should not have been admitted because, standing alone, it was insufficient to establish impairment. Reviewing the deceased's BAC level of .166, testimony from a medical technologist that a BAC level of .4 or .5 would be inconsistent with life, the beer cans and cooler found near the deceased's vehicle, and the circumstances of the accident, the Court found there was evidence sufficient for a jury to conclude the deceased was impaired from alcohol consumption at the time of the accident. This Court held the trial judge did not abuse his discretion in admitting the evidence. Gulledge, 328 S.C. at 511-12, 492 S.E.2d at 819-20.

The present case is clearly distinguishable from Gulledge. Although Kennedy tested positive for marijuana, the test did not measure the quantity of marijuana in Kennedy's system or how recently Kennedy had been exposed to marijuana. Unlike the evidence in Gulledge, no evidence in the present case indicated whether the marijuana was of such a level as to impair Kennedy's judgment. Further, the circumstantial evidence did not support an inference that Kennedy was impaired due to marijuana use. No marijuana was found in or near Kennedy's truck and there was no testimony that Kennedy smelled of marijuana. Although witnesses noticed that Kennedy delayed in applying his brakes, Kennedy's actions did not necessarily suggest that he was driving under an impairment.

Under these circumstances, evidence of the mere presence of marijuana, without further indication of impairment, could mislead the jury. The admission of this evidence was more prejudicial than probative because there was no correlation between the marijuana and the accident. Accordingly, the trial judge erred in allowing its admission. See Simco v. Ellis, 303 F.3d 929, 933-34 (8th Cir.2002) (holding that evidence of a truck driver's cocaine use at the time of the accident should have been excluded as prejudicial where the toxicology test did not support a finding of intoxication and the mere mention of cocaine could inflame a jury); State v. McClain, 525 So.2d 420 (Fla.1988) (finding the trial court did not abuse its discretion in excluding evidence of trace amounts of cocaine in the defendant's blood where chemist could not express opinion on whether it would have affected defendant's driving and it would have seriously prejudiced defendant in the eyes of the jury); Martinez v. Graves, 2003 WL 21466962 (Tex.App.2003) (affirming the trial judge's exclusion of evidence of cocaine in the deceased's system because the amount of cocaine was not established and there was no correlation between the cocaine and the accident).

II. Negligence Per Se charge

Kennedy also asserts he was entitled to a new trial because the trial judge erred in charging the law of negligence per se to the jury.

It is unlawful to drive in this State while under the influence of alcohol or drugs. S.C.Code Ann. § 56-5-2930 (1991).² A driver is "under the influence" when ingestion of drugs or alcohol results in the impairment of the driver's faculties, impairs the driver's ability to operate the vehicle with reasonable care, or impairs the driver's ability to drive as a prudent driver would operate the vehicle. State v. Kerr, 330 S.C. 132, 143-44, 498 S.E.2d 212, 217 (Ct.App.1998).

"Negligence per se is established by proof that a party violated a statute which has the essential purpose of protecting persons such as the injured party from the kind of harm suffered." Gulledge, 328 S.C. at 510,492 S.E.2d at 819 (internal citations omitted); Coleman v. Shaw, 281 S.C. 107, 314 S.E.2d 154 (Ct.App.1984) (holding that violation of a statute is negligence per se). "Where there is evidence from which the jury can reasonably infer one is in violation of a statute, that evidence will support a charge of that statute." Jefferson v. Synergy Gas, Inc., 303 S.C. 479, 481, 401 S.E.2d 427, 428 (Ct.App.1991). A trial judge's decisions on jury instructions will not be reversed on appeal absent an abuse of discretion. Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Id. at 389, 529 S.E.2d at 539 (...