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Sidney v. Raleigh Paving & Patching3/2/1993
e Deputy Commissioner to find either way.
Plaintiff also takes exception with the testimony of the defendants' expert, Dr. Kanich who testified that it was his opinion that
the decedent was impaired. When pressed, Dr. Kanich felt unable to express a legal opinion as to whether the decedent was intoxicated. However, Dr. Kanich did express his personal opinion that with the decedent's blood alcohol level he would have been driving while impaired. Dr. Kanich also testified that with a blood alcohol level of .202, the decedent would have been borderline between simple impairment and extreme excitement and confusion. Though, Dr. Kanich did not feel qualified to express an opinion as to a legal definition of intoxication, we feel there is competent evidence in the record to support a finding by the Deputy Commissioner that the deceased was intoxicated.
Plaintiff further takes exception with the Deputy Commissioner's finding that the decedent's intoxication proximately caused his death. Instead, plaintiff contends that excessive speed was the cause of the accident. In support of this argument, plaintiff relies on the testimony of Officer Dudley, the investigating officer, and Mr. Arnold, the driver of the car which the decedent passed. Officer Dudley testified that when he arrived at the scene of the accident he did not smell any alcohol in the truck or on the decedent. As further support that speed and not intoxication was the proximate cause of decedent's death, plaintiff relies on the fact that Officer Dudley charged the decedent only with exceeding a safe speed and exceeding the speed limit and not an alcohol related offense. Arnold, who was familiar with the curve, also expressed his opinion that the accident was caused by excessive speed.
Though it is clear that excessive speed may have been a cause of the accident, plaintiff's argument misses the mark when it states that there is not competent evidence to establish that intoxication was a cause of the accident. As stated previously, intoxication does not have to be the sole proximate cause. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638 (1984), disc. rev. denied, 313 N.C. 327, 327 S.E.2d 887 (1985). Instead it only has to be more probable than not that intoxication was a cause in fact of the accident. Id. In today's society, where alcohol related fatalities are all too common, the relationship between alcohol consumption and driving at excessive speeds is common sense and need not be documented. Therefore, even though the plaintiff has made a well wrought argument that excessive speed was a proximate cause we find competent evidence to exist in the record that would support the Commission's finding that the decedent
was intoxicated and that the decedent's intoxication was a cause in fact of his death.
We find the facts of this case indistinguishable from those in Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111 (1986), and affirm on the basis thereof.
For the foregoing reasons, we
Affirm.
Judges WELLS and COZORT concur.
Disposition
Affirmed.
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