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Chartrand v. Coos Bay Tavern Inc.6/27/1984
COURT OF APPEALS OF OREGON
CA No. A29055
1984.OR.41642 ; 683 P.2d 139; 68 Or. App. 879
June 27, 1984; Filed.
EVA IVA CHARTRAND, RESPONDENT,
v.
COOS BAY TAVERN, INC., DBA THE SPORTSMAN LOUNGE, APPELLANT
Appeal from Circuit Court, Coos County. Hugh Downer, Judge Pro Tempore. No. 82-1680.
Lynne W. McNutt, Coos Bay, argued the cause for appellant. With him on the briefs was McNutt, Gant, McNutt & Thrush, Coos Bay.
Michael O. Whitty, Coos Bay, argued the cause and filed the brief for respondent.
Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.
Young
This is an action for damages for personal injuries against the defendant tavern-owner arising out of an automobile accident involving an automobile operated by a customer of the tavern and one operated by plaintiff. Defendant appeals from a judgment for plaintiff based on a jury verdict. We reverse because of errors in admitting certain evidence and in the giving of jury instructions.
The pertinent allegations of the complaint are that defendant sold and continued to sell alcoholic beverages to its customer, Coonse, "after she had become visibly under the influence of intoxicating liquor," when defendant knew or should have known that she would "leave the premises" by "operating a motor vehicle" and would thereby "constitute an unreasonable hazard of risk and harm to other persons on the public highway."
On April 12, 1982, Coonse spent several hours drinking beer in defendant's tavern. She left the tavern around 10 p.m., driving her car. The accident happened about 10:10 p.m. when she collided with plaintiff's vehicle and plaintiff was injured. After the accident, Coonse admitted that she had been drinking at the tavern and she submitted to blood tests to determine blood alcohol content. The first sample was taken at 11:40 p.m. and resulted in a blood alcohol reading of 0.188 percent. The second sample, taken at 12:49 a.m., registered 0.163 percent. An expert testified that subjects with blood alcohol levels of 0.13 to 0.14 show visible signs of intoxication. Suffice it to say that there was ample evidence from which the jury could find that defendant served beer to Coonse after she was "visibly intoxicated."
During plaintiff's case in chief, a police officer related to the jury the blood alcohol test results. He then testified on direct examination:
"Q. Officer, from your experience, is there a standard that is used to determine when a person is under the influence of alcohol?
"A. The State of Oregon has defined that by law."
Defendant objected to the question "as having no bearing in this case, not a question for us." The objection was overruled, and the officer continued:
"Q. Officer, what is the standard in Oregon for being under the influence?
"A. Oregon state law says that you are under the influence if your blood alcohol level is over .10 percent."
The trial court gave a series of jury instructions that are set out in the margin in the order that they were given.
Defendant contends that the officer's testimony concerning the legal standard for being under the influence of intoxicants and the instruction telling the jury that a person whose blood contains more than .10 percent by weight of alcohol is under the influence of intoxicating liquor are irrelevant to the issues in this case and constitu
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