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Loevsky v. Carter5/4/1989
he range of blood alcohol content the female would have been experiencing at approximately 10:45 - 10:50 a.m. Dr. Coleman then testified as to the effects of such a level of blood alcohol absorption on the human body and behavior.
Dr. Thomas Bolster (Dr. Bolster), qualified as an expert in the area of accident reconstruction, testified that one of the purposes of the videotape was to demonstrate the principle that one can negotiate this roadway and curvature at speeds of approximately 30 m.p.h. even if there is a rather over abundance of gravel.
Over Plaintiffs' and Defendants Laurie's and Michael's previously raised objections, County subsequently admitted into evidence through Dr. Bolster (the operator of the video camera) the videotape generated on October 25, 1986. The videotape was then played before the jury with Dr. Bolster simultaneously under direct examination. Later, Dr. Bolster was cross-examined by the respective parties on the purpose and contents of the videotape.
During the settling of jury instructions, Plaintiffs and Defendants Laurie and Michael objected to County's proposed instruction 15, which was thereafter given over their noted objections:
The statute of the State of Hawaii provides that: No person shall operate or assume physical control of the operation of a motor vehicle while under the influence of intoxicating liquor.
On May 5, 1987, the jury rendered a special verdict absolving the County of liability and finding Laurie (70%) and Michael (30%) liable. Following the entry of the Second Amended Judgment on July 20, 1988, this timely appeal followed.
II.
THE ADMISSION AND SUBSEQUENT USE OF EVIDENCE
While Plaintiffs raise various issues on appeal, we focus our attention to two areas of underlying concern: 1) the introduction of the videotape into evidence; and 2) the evidence of Laurie's alleged consumption of alcohol prior to the accident.
A.
THE VIDEOTAPE
The tape's visual contents include four crucial test runs described as follows:
1) the solo rider travelling around the curve, near the shoulder of the lane, over the pre-placed gravel, at 32-34 m.p.h.;
2) the solo rider travelling the same route, over the pre-placed gravel, at a diminished speed of 30-31 m.p.h.;
3) the solo rider travelling the same route, over the pre-placed gravel, at a diminished speed of 29-30 m.p.h.; and
4) the fourth run, shot from the video camera being held by Dr. Bolster while seated as a passenger behind the test rider Stephenson, recording the motorcycle's path while travelling the same route, close to, but not over the pre-placed gravel, at Dr. Bolster's estimated speed of approximately 30 m.p.h.
Plaintiffs contend the tape was made under circumstances so dissimilar to the actual accident that the circuit court abused its discretion in admitting the tape into evidence.
" hen a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the accident." Carr v. Suzuki Motor Co. , 280 Ark. 1, 3, 655 S.W.2d 364, 365 (1983). And " lthough the decision whether to admit evidence of experiments rests largely in the
sound discretion of the trial judge, it is well settled that reconstruction experiments are incompetent unless the essential elements of the experiment are shown to be substantially similar to those existin
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