Zempel v. Slater

• Decision Date: 06 December 2005
• Docket Number: No. ED 85109.,ED 85109.
• Citation: Zempel v. Slater, 182 S.W.3d 609 (Mo. App. 2005)
• Parties: Richard and Elizabeth ZEMPEL, Respondents, v. R.J. SLATER, Appellant.
• Court: Missouri Court of Appeals

182 S.W.3d 609

Richard and Elizabeth ZEMPEL, Respondents, v. R.J. SLATER, Appellant.

No. ED 85109.

Missouri Court of Appeals, Eastern District, Division Five.

December 6, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 19, 2006.

Application for Transfer Denied February 28, 2006.

COPYRIGHT MATERIAL OMITTED

Jeffrey J. Lowe, Clayton, MO, for respondents.

Samuel T. Vandover, St. Louis, MO, for appellant.

OPINION

GLENN A. NORTON, Chief Judge.

R.J. Slater appeals the judgment entered after the jury's verdict in favor of Richard and Elizabeth Zempel on their negligence claims arising out of a collision between Slater's car and Richard Zempel's motorcycle. We affirm.

I. BACKGROUND

This accident occurred on a clear, sunny day in October at the intersection of Route B and Seeburger Road in St. Charles County. The terrain in that area is flat, and the fields at that intersection were cleared on the day of the accident. Richard Zempel and his 11-year old son were traveling in the eastbound lane of Route B on a motorcycle, and Slater was traveling south on Seeburger Road in his car. Slater had a stop sign, but there were no traffic signals applicable to Zempel. Slater testified that he was very familiar with this intersection and knew there was a stop sign on Seeburger Road but not on Route B. Photographs taken from a point just before and just past the stop sign on Seeburger Road depicted an unobstructed view of Route B. But Slater testified that the photographs did not show that, on the day of the accident, there was traffic and glare from the setting sun. Nevertheless, Slater agreed that he could see "some distance" down, and stated that he had a "sufficient view" of, the eastbound lane of Route B.

Slater testified that he stopped "long before" he got to the stop sign and looked to the left and the right many times. There was a lot of traffic, and after some of the traffic cleared, he advanced past the stop sign, but not onto the paved portion of Route B, and again looked left and right many times. Slater remained stopped just past the stop sign until the traffic cleared. He testified that he had a "sufficient view" of the eastbound lane, then he looked to the westbound lane again and, seeing that all was clear, proceeded at about five miles per hour through the intersection, continually glancing left and right as he crossed Route B. When he was leaving the intersection, there was a crash. He agreed that a portion of his car was still in Zempel's lane at the time of the collision, but Slater said that he never saw the motorcycle and had no explanation for why he had not.

The first officer to respond to the accident testified that Zempel's motorcycle was lying in the eastbound lane of Route B with extensive front-end damage and that there was a skid mark starting 84 feet, 10 inches from the intersection and ending at the motorcycle. Slater's car was off the road against a telephone pole. Over Slater's counsel's objection, the officer discussed a diagram attached to his police report depicting the "area of impact;" it showed Slater's car positioned in the middle of the intersection with half of the car in the westbound lane and half in the eastbound lane of Route B. Slater's counsel also objected to questions in which the officer was asked to indicate where the impact occurred, and Zempel's counsel withdrew those questions. But the officer did testify that he had determined the area of impact based on the motorcycle's skid mark. On cross-examination, Slater's counsel asked the officer further questions about his determination of the point of impact. The officer first explained that the motorcycle hit the car partly on the passenger-side door and partly on the front fender. The officer agreed with Slater's counsel that, based on where the car was hit and the officer's measurements, at least the front three and half feet of Slater's car was through the intersection when the motorcycle first made contact with it. On re-direct, the officer further explained that, based on the length of Slater's car, it was still blocking the entire eastbound lane of Route B at the point that Zempel's motorcycle and the car collided.

The officer also testified that he detected a "slight" or "faint" odor of alcohol on Slater when talking with him after the accident. When he asked Slater if he had been drinking, Slater told him that he had a "couple of beers at his river house." Slater denied drinking anything on the day of the accident and denied telling the officer that he had. The officer testified that Slater passed an eye gaze nystagmus test and a portable breath test. Ultimately, the officer determined that Slater's blood alcohol content was not above the legal limit and that alcohol had not been a probable contributing cause to this accident. The officer also stated that alcohol affects different people different and has the ability to affect reaction time and perception.

Another officer at the accident scene also testified that he knew Slater had consumed one or two beers, although he could not recall why he concluded that: "it might have been the odor on him or something." He also testified that the portable breath test revealed that Slater had been drinking, but that he was not over the legal limit, which the officer mentioned had been reduced from .10 to .08 since the time of this accident. The officer went on to explain that, in his experience, alcohol affects people differently:

I've been going on 15 years, and the alcohol—it just depends on the person. We can get a guy that's standing out there drunker than a skunk and he can do that field sobriety perfect, but it just depends on—and if they're an alcoholic, they can handle themselves better, so it all depends on the person.

The officer confirmed that because alcohol was not mentioned in the police report and Slater was not arrested, the other officer did not believe that alcohol contributed to the accident.

Due to closed-head injuries from the collision, Zempel and his son had no recollection of how the accident occurred. This had been the first long motorcycle ride outside of their St. Louis City neighborhood that Zempel had ever taken with one of his sons. Zempel said that "whenever" he takes his sons for rides on the motorcycle, he has them read the speed limit sign to him and then he puts the needle of the speedometer on the speed limit. He said that it was his habit when riding with his sons to always obey the speed limit:

I never break the speed limit when driving a motorcycle and especially with my son—with any of my children on the back which I didn't do very often anyway. I didn't take the kids for rides. This was the only time we went for a long ride outside the neighborhood.

Zempel's son testified that he had ridden on a motorcycle with his father "maybe 20 or 30 times" and that he had never seen Zempel go over the speed limit while riding with him. He also described how his father asks him to read the speed limit signs and then he looks over his father's shoulder to see the speedometer.

At the conclusion of the Zempels' case and at the close of all evidence, Slater's motions for directed verdict were denied. The jury was instructed to assess a percentage of fault to Slater if he either failed to yield the right-of-way or failed to keep a careful lookout. The court also instructed the jury to assess a percentage of fault to Zempel if he failed to keep a careful lookout or knew or should have known that there was a reasonable likelihood of collision in time to swerve, slow down or sound a warning, but failed to do so. The jury assessed 60% of the fault to Slater and 40% of the fault to Zempel and awarded the Zempels damages. Slater's motion for judgment notwithstanding the verdict, along with other post-trial motions, was denied. He appeals, challenging various evidentiary rulings and the sufficiency of the evidence.

II. DISCUSSION

A. Evidentiary Rulings

We will not disturb the trial court's decision regarding the admission of evidence absent a clear abuse of discretion. Fairbanks v. Weitzman, 13 S.W.3d 313, 318 (Mo.App. E.D.2000). We find no abuse of discretion in any of the court's evidentiary rulings in this case.

1. Evidence of Slater's Alcohol Consumption

Slater challenges the admission of the first officer's testimony regarding the odor of alcohol and Slater's consumption of a couple of beers. Slater contends that this evidence allowed the jury to improperly conclude that he had not seen Zempel due to his alcohol consumption. Slater argues that such a conclusion is speculative because there was no evidence as to when the alcohol was consumed and no evidence that his alcohol consumption affected his ability to perceive, see, hear and recall the accident, caused him not to see Zempel or otherwise impaired him in anyway. The prejudicial effect of the evidence, he maintains, outweighed any slight relevance and was not cured by the limiting instruction. We disagree.

Evidence of a party's alcohol consumption is admissible "if otherwise relevant and material." Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 108 (Mo. banc 1996). Here, Slater was not only a party, but also the only witness who could testify about the accident. A witness's alcohol consumption is relevant and material to his ability to see, hear, perceive and observe. Id. at 106. Any possible impairment of a witness's ability to recall is relevant to his credibility. Id. For those reasons, Slater's alcohol consumption was relevant in this case. Moreover, because the case was submitted on the parties' comparative fault, the evidence of his alcohol consumption is especially relevant. See Stewart v. Carron, 938 S.W.2d 636, 640 (Mo.App. E.D.1997).

Stewart involved a head-on car collision, and the case was submitted on the drivers' comparative fault. Id. at 636-37, 638. Evidence of the plaintiff's intoxication was admitted into evidence, but the trial court...