Parries v. Labato

• Decision Date: 25 June 1979
• Docket Number: No. A7704-04640,A7704-04640
• Citation: 597 P.2d 356,40 Or.App. 851
• Parties: Katie R. PARRIES, Personal Representative of the Estate of Sheri Jean Norton, Deceased, Respondent, v. Andrew Kirk LABATO and Andrew J. Labato, Appellants. ; CA 11137.
• Court: Oregon Court of Appeals

Page 356

597 P.2d 356

40 Or.App. 851

Katie R. PARRIES, Personal Representative of the Estate of Sheri Jean Norton, Deceased, Respondent, v. Andrew Kirk LABATO and Andrew J. Labato, Appellants.

No. A7704-04640; CA 11137.

Court of Appeals of Oregon.

Argued and Submitted April 25, 1979.

Decided June 25, 1979.

John H. Clough, Portland, argued the cause for appellants. With him on the brief was Alfred T. McGill, and McGill, Clarke & Kapranos, Portland.

Howard Hedrick, Portland, argued the cause and filed the brief for respondent.

Before SCHWAB, C. J., and GILLETTE and CAMPBELL, JJ.

CAMPBELL, Judge.

In this action for the wrongful death of plaintiff's decedent, defendants appeal from a judgment entered on a jury verdict for plaintiff in the amount of $65,000. Defendants make fifteen assignments of error which relate to: the trial court's refusal to grant defendants a directed verdict on the issue of the intoxication of defendant Andrew Kirk Labato, denial of defendants' motion for a continuance due to the absence of one of defendants' key witnesses, submission to the jury of the issue of defendant Andrew J. Labato's liability based on the family purpose doctrine; the admission of defendants' amended answer as an exhibit; and the jury instructions on reducing the value of the decedent's future estate to its present value. We affirm.

On the morning of April 10, 1975, defendant Andrew Kirk Labato picked up Sheri Norton, Shirley Scheck and Doug Sands in his car and drove to David Douglas High School, which they were all attending at the time. All four then left school in the car, drove to a market and purchased three quarts of beer. They proceeded to Shirley Scheck's home, arriving there at 8:45 to 9:00 a. m., where they drank the beer. Kirk Labato drank about one quart, Doug Sands drank perhaps slightly more than one quart and Sheri Norton and Shirley Scheck shared the rest. At about 9:30 or 10:30 a. m., the four left Shirley Scheck's home and drove to a park, where they stayed for approximately forty-five minutes. When they left the park to return to school, Kirk Labato was driving, Sheri Norton occupied the right front passenger seat and Shirley Scheck and Doug Sands were sitting in the back seat. Shortly before 11:42 a. m., the car reached a point where the road narrows under a railroad bridge. In order to avoid the abutment, a car at that point must change direction slightly. Kirk Labato, who was driving at about forty-five miles per hour, kept driving straight and struck the abutment. Sheri Norton died the next day from injuries she received in the collision. Her mother brought this action.

This case arises under Oregon's guest statute, ORS 30.115, which provides in part:

"No person transported by the owner or operator of a motor vehicle, an aircraft, a watercraft, or other means of conveyance as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication." ¹

Defendants first assign error to the trial court's refusal to direct the jury to enter a verdict for defendants on the grounds that there was no evidence that Kirk Labato was intoxicated at the time of the accident. ²

In Jenson v. Spencer, 269 Or. 411, 525 P.2d 153 (1974), the Oregon Supreme Court stated:

"A person is intoxicated within the meaning of the guest statute when he is under the influence of an intoxicating liquor to such an extent as to tend to prevent him from exercising the care and caution which a sober and prudent person would have exercised under the same circumstances." 269 Or. at 416, 525 P.2d at 155, Quoting from Willoughby v. Driscoll, 168 Or. 187, 198, 120 P.2d 768, 121 P.2d 917 (1942).

Jenson v. Spencer examined prior case law and summarized the various fact situations from which a jury may infer that a defendant's ability to drive was impaired by his prior consumption of alcohol. The court stated:

" * * * Such sufficient evidence has taken the form of:

(1) Consumption by the defendant of a substantial quantity of alcohol shortly before an accident,

(2) A showing of a lesser amount of alcohol consumed plus evidence of:

(a) prior erratic driving, or

(b) slurring of speech, staggering, bloodshot eyes, or difficulty controlling movement, or

(c) the occurrence of an accident, the facts of which suggest that defendant's driving was impaired.

(3) Testimony from witnesses that the defendant was intoxicated and smelled of alcohol." (footnotes omitted.) 269 Or. at 419, 525 P.2d at 156-57.

In the present case, there was no testimony that Kirk Labato demonstrated any of the perceptible signs of intoxication. Doug Sands testified that Kirk Labato acted in a "normal" fashion and that "(h)e was driving fine." Shirley Scheck's stipulated testimony was

"that Kirk acted entirely normal; he talked, walked, and showed no sign whatsoever of any effects from drinking the beer, or any sign of intoxication in any way. That when he drove, he didn't speed, swerve, or drive erratically; he just drove normally along in his own lane, and * * * Kirk was definitely sober."

Another witness, who has been driving his vehicle behind Kirk Labato's for approximately one-half mile before the crash, testified that "(t)here wasn't anything abnormal about the way it was driven."

The facts surrounding the accident, however, "suggest that defendant's driving was impaired." Jenson v. Spencer, supra, 269 Or. at 419, 525 P.2d at 157. The evidence supports the inference that instead of making the minor adjustment in direction necessary to avoid the abutment, Kirk Labato allowed his car to leave the pavement and immediately thereafter struck the abutment.

There was also evidence that at 10:30 a. m. Kirk Labato had finished drinking at least one quart of beer. Plaintiff's experts testified that Kirk Labato's blood alcohol level would, therefore, have peaked at approximately 11:30 a. m., shortly before the accident. His blood alcohol level at 3:30 p. m. was measured at .02 percent. One expert testified concerning the average dissipation rate of alcohol from the blood and Kirk Labato's dissipation rate, which could be approximated using the results of a blood alcohol test performed on Kirk Labato at 4:45 p. m. Using the .02 percent figure, the expert witness testified that, depending on the precise dissipation rate, Kirk Labato's blood alcohol level at the time of the accident was between .084 and .1 percent. There was also testimony that Kirk Labato was an occasional drinker and that 80 percent of occasional drinkers show impairment of function with a blood alcohol level of .05 percent.

Defendants argue that under Stites v. Morgan, 229 Or. 116, 366 P.2d 324 (1961), the evidence of Kirk Labato's blood alcohol level at the time of the accident is insufficient to create a question of fact for the jury on the issue of intoxication. In Stites v. Morgan, the defendant driver drank four beers between 12:30 p. m. and 3:00 p. m., the time of the accident. The accident resulted when, after being distracted by someone in the back seat, defendant lost control of the car on a curve. A blood test administered at 6:30 p. m. showed that defendant's blood alcohol level was .09 percent. There was no evidence of defendant's conduct or appearance around the time of the accident from which the jury could infer that he was intoxicated. The trial court refused to allow the case to go to the jury on the issue of intoxication. Plaintiff argued to the Oregon Supreme Court that by using the rate of dissipation of alcohol from the blood, the defendant's blood alcohol level at the time of the accident would be calculated at between .132 and .16 percent. From that scientific calculation, plaintiff contended, the jury could have drawn the inference that defendant was intoxicated. The court rejected this argument stating:

"Assuming that such a calculation can be the basis from which a jury could draw the inference of intoxication, plaintiff did not present any evidence of the scientific data from which the jury in this case could draw that inference. There was no evidence either as to the rate of dissipation of alcohol from the blood or as to the alcohol concentration which is necessary to produce intoxication." 229 Or. at 120, 336 P.2d at 326.

In contrast, in the present case plaintiff presented expert testimony as to both the dissipation rate and the alcohol concentration necessary to produce impairment of function, thus curing the evidentiary deficiencies in Stites v. Morgan. ³

In addition, plaintiff introduced into evidence an extrajudicial admission by Kirk Labato that his ability to control the vehicle was impaired. See discussion below.

We conclude that under Jenson v. Spencer, supra, the evidence of Kirk Labato's consumption of alcohol before the accident, combined with the inference of impairment available from the circumstances of that accident and Kirk Labato's admission that his driving was impaired, was sufficient to present the jury with the question of fact whether Kirk Labato was intoxicated at the time of the accident.

Defendants next assign error to the trial court's denial of their motion for a continuance due to the absence of a witness. Three days before the start of the trial, Shirley Scheck, a prospective defense witness who had been a passenger in the car at the time of the accident, entered a hospital for an emergency operation. Counsel for defendants moved for a continuance, informing the court that the witness would be unavailable for trial and that defendants had not taken the witness' deposition. Plaintiff offered to stipulate to what the witness' testimony would be were she able to testify. Defendants argued that the stipulated testimony would be inadequate since plaintiff planned to impeach the stipulated testimony with...