Rodriguez v. Suzuki Motor Corp.

• Decision Date: 17 December 1996
• Docket Number: No. 78539,78539
• Parties: , Prod.Liab.Rep. (CCH) P 14,837 Kathryn RODRIGUEZ, Respondent/Cross-Appellant, v. SUZUKI MOTOR CORPORATION (f/k/a ) Suzuki Motor Company, Ltd. and American Suzuki Motor Corporation, Appellants/Cross-Respondents, v. Deborah DUBIS, Respondent.
• Court: Missouri Supreme Court

Page 104

936 S.W.2d 104

65 USLW 2504, Prod.Liab.Rep. (CCH) P 14,837

Kathryn RODRIGUEZ, Respondent/Cross-Appellant, v. SUZUKI MOTOR CORPORATION (f/k/a ) Suzuki Motor Company, Ltd. and American Suzuki Motor Corporation, Appellants/Cross-Respondents, v. Deborah DUBIS, Respondent.

No. 78539.

Supreme Court of Missouri,

En Banc.

Dec. 17, 1996.

Rehearing Denied Jan. 21, 1997.

Frank N. Gundlach, Jordan B. Cherrick, St. Louis, Kenneth W. Starr, Paul T. Cappuccio, Carter G. Phillips, Gene C. Schaerr, Christine A. Liverzani, Michael J. Raphael, Washington, D.C., Sawnie A. McEntire, Houston, TX, Robert B. Fiske, Jr., Frances E. Bivens, New York City, for appellants/cross-respondents.

Maurice B. Graham, John S. Wallach, Theodore H. Hoffman, St. Louis, Albert M. Pearson, III, James E. Butler, Jr., Robert D. Cheeley, Atlanta, GA, Patrick A. Dawson, Marietta, GA, Cheryl A. Callis, St. Louis, for respondent/cross-appellant.

Hugh F. Young, Jr., Reston, VA, Thomas N. Sterchi, Kansas City, MO, Andrew L. Frey, Evan M. Tager, Washington, D.C amicus Product Liability Advisory Council, Inc.

Phillip D. Brady, C. Dean McGrath, Jr., Washington, D.C., Charles H. Lockwood, II, Arlington, VA, Walter L. Cofer, Margaret D. Lineberry, Joseph G. Matye, Kansas City, amicus American Auto. Mfrs. Ass'n and Ass'n of Intern. Auto. Mfrs., Inc.

BENTON, Judge.

Plaintiff Kathryn C. Rodriguez suffered serious permanent injuries when the automobile in which she was riding rolled over in Warren County. Following verdict and judgment for her, Suzuki Motor Corporation ("Suzuki") appealed, alleging constitutional and trial errors. Mo. Const. art. V, § 3. This Court concludes that the evidence of alcohol consumption was improperly excluded, and on retrial, the jury should be instructed to award punitive damages only if supported by clear and convincing evidence. Reversed and remanded.

On February 11, 1990, defendant Deborah Dubis was driving a Suzuki Samurai on Highway 94, with plaintiff Rodriguez and Lisa Nunnally as passengers. The vehicle left the right side of the roadway, traveled into the ditch, and struck a 14-inch-high dirt headwall--the side of a cemetery driveway. What happened next was hotly disputed. According to the driver and passengers, the Samurai returned to the roadway, crossed the center line, and when Dubis turned sharply right to correct, the vehicle rolled over. According to Suzuki, the Samurai never returned to the roadway. Instead, the impact with the cemetery driveway launched the vehicle into the air, causing the Samurai to roll in the ditch.

Rodriguez asserted claims of strict products liability, negligence, breach of warranty, and punitive damages against Suzuki, and a negligence claim against Dubis. In addition, Suzuki cross-claimed against Dubis, alleging negligence.

The jury found Rodriguez's damages at $30 million, assessing fault at 100% to Suzuki, 0% to Dubis, and 0% to Rodriguez. In addition, the jury returned punitive damages against Suzuki for $60 million. On remittitur, the circuit court reduced the compensatory award to $20 million and the punitives to $20 million.

I.

Suzuki argues that the trial judge erred in excluding all evidence of and all references to the consumption of alcohol, which surfaced in two contexts: impeachment of non-party witnesses, and the negligence/comparative negligence of parties Dubis and Rodriguez.

A. Non-parties

Generally, evidence of alcohol consumption "is relevant and material to the witness's ability to see, hear, perceive and observe." Johnston v. Conger, 854 S.W.2d 480, 483 (Mo.App.1993), citing State v. Caston, 509 S.W.2d 39, 41 (Mo.1974). This evidence is admissible by cross-examination or by independent testimony. Caston, 509 S.W.2d at 41. Any possible impairment of a witness's ability to recall is relevant to her credibility. Johnston, 854 S.W.2d at 484; Sanders v. Armour & Co., 292 S.W. 443, 446-47 (Mo.App.1927).

In Suzuki's offer of proof, several witnesses admitted drinking wine before the accident. Passenger Nunnally admitted feeling "tipsy." The trial court erred in barring evidence of alcohol consumption by the non-party witnesses.

B. Parties

1.

Previously, in a negligence action, evidence of a driver's alcohol consumption was admissible only if coupled with evidence of erratic driving or some other circumstance from which it might be inferred that the driver's physical condition was impaired at the time of the accident. Doisy v. Edwards, 398 S.W.2d 846, 849-50 (Mo. banc 1966), citing Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868 (1944) and Boehm v. St. Louis Public Service Company, 368 S.W.2d 361, 372 (Mo.1963); McHaffie v. Bunch, 891 S.W.2d 822, 831 (Mo. banc 1995). The apparent rationale was that evidence of drinking could "prejudicially and improperly inflame the jury's sentiments." Strycharz v. Barlow, 904 S.W.2d 419, 425 (Mo.App.1995).

Doisy 's logic made more sense under a system of contributory negligence. Under that system, liability was essentially "all or nothing." Gustafson v. Benda, 661 S.W.2d 11, 28 (Mo. banc 1983)(Billings, J., concurring). Any contributory negligence barred recovery by the plaintiff. Walsh v. Southtown Motors Co., 445 S.W.2d 342, 348 (Mo.1969). Similarly, a defendant's liability was for all or none of the damages. See Gustafson, 661 S.W.2d at 28; W. Prosser, Comparative Negligence, 51 Mich. L.Rev. 465, 474 (1953). Under a zero-sum contributory negligence system, an improper focus on alcohol evidence would bar deserving plaintiffs, or penalize blameless defendants.

In 1983 Missouri adopted a comprehensive system of comparative fault. Gustafson, 661 S.W.2d at 16. The key to this system is that a jury decides the issues of relative fault and assesses appropriate percentages. Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466, 474 (Mo. banc 1978). Comparative fault is based upon the principle of fairness, id., and is more "equitable and just." Gustafson, 661 S.W.2d at 28. Since the apportionment of fault and damages is factual by nature, a jury should be as fully informed as possible in order to determine the relative fault of the parties. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 67, at 470 (5th ed.1984). A comparative fault system can better accommodate alcohol evidence than a contributory negligence system.

A practical reason to abandon the Doisy standard is that its application is inconsistent and unpredictable at trial. In Broderson v. Farthing, evidence that the driver consumed three glasses of wine and had alcohol on her breath was excluded because pulling into the path of another vehicle did not show "erratic driving." 762 S.W.2d 548, 550-51 (Mo.App.1989). In Strycharz, supra, evidence that the defendant driver drank two beers and had alcohol on his breath was excluded because the driver's failure to swerve or see the plaintiff (though visible for 900 feet) did not show erratic driving. 904 S.W.2d at 424.

However, in other cases with strikingly similar facts, evidence of alcohol consumption was admissible. In Bohn v. James, evidence that the defendant drank three or four beers and had alcohol on his breath was admissible because speeding and failure to keep a proper lookout exhibited erratic driving. 573 S.W.2d 448, 449 (Mo.App.1978). In Boehm, supra, a hospital record citing alcoholic breath was admissible because driving a motor scooter through a stop sign at 20 m.p.h. without stopping and with no headlight burning showed erratic driving. 368 S.W.2d at 371. In Cheatham, supra, evidence that the defendant had alcohol breath was admissible because driving in a zig-zagging and wobbling manner showed erratic driving. 176 S.W.2d at 868. In Hager v. McGlynn, evidence that the defendant consumed three scotch-and-waters and one liqueur was admissible because running a red light and not applying the brakes was erratic driving. 518 S.W.2d 173, 178 (Mo.App.1974), overruled on other grounds by State ex rel. Sims v. Sanders, 886 S.W.2d 718, 721 (Mo.App.1994). In Hansen v. James, evidence that the driver consumed several alcoholic beverages was admissible because inexplicably leaving the road, striking a utility pole, and going down an enbankment showed erratic driving. 847 S.W.2d 476, 482 (Mo.App.1992).

The cases are not even consistent on whether evidence of blood alcohol content above the legal limit is admissible. In Lauderdale v. Siem, evidence that the defendant had blood alcohol content above the legal limit was excluded because the accident debris located in plaintiff's lane was not evidence of erratic driving. 725 S.W.2d 897, 900 (Mo.App.1987). Similarly, in Bentley v. Crews, evidence of blood alcohol content above the legal limit was excluded because crossing the center line was not erratic driving. 630 S.W.2d 99, 106-07 (Mo.App.1981). However, in Diener v. Mid-American Coaches, Inc., a blood alcohol test above the legal limit was admissible because the driver crossed the center line. 378 S.W.2d 509, 512 (Mo.1964). In Miller v. Eaton, evidence that the driver's blood alcohol content was above the legal limit was admissible because speeding on narrow, curving rural roads was erratic driving. 733 S.W.2d 31, 34 (Mo.App.1987).

The inconsistency and unpredictability of the case law is not surprising in view of the confusion in the original pronouncement of the rule. Doisy itself concerned a head-on collision. The plaintiff offered evidence that: (1) a highway patrolman smelled liquor on defendant's breath; and (2) defendant's car crossed the center line and continued left toward the plaintiff for 100-300 feet, finally colliding with the plaintiff on the right shoulder of plaintiff's lane. 398 S.W.2d at 848, 849. This Court upheld the trial court's exclusion of the evidence of alcohol breath because there was "no evidence showing erratic driving." Id. at 849, 850.

The crowning ambiguity in Doisy is that it permits admission of alcohol evidence not only...