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American Select Insurance Co. v. Sunnycalb11/28/2005
{ } Plaintiff-appellant, American Select Insurance Company, appeals a decision of the Warren County Court of Common Pleas denying its motion for a judgment notwithstanding the verdict and/or new trial.
{ } On April 21, 2001, Amanda Sunnycalb and her friend Michelle Brannen went to a bar in Lebanon, Ohio around 10:30 p.m. Half an hour later, Michael Judd, Brian Clemmons, and Timothy Newton arrived at the bar. All five drank and played video games until 2:30 a.m. when they left the bar. Brian drove his car while Michael, Michelle, and Timothy rode as passengers in a car driven by Amanda. Michael was severely injured when Amanda lost control of the car and struck a utility pole. At the time of the accident, Michael was insured by appellant. As a result, appellant paid Michael $110,000 in damages. It then filed a suit against Amanda to recover the $110,000.
{ } A jury trial was held in November 2004. At issue was whether Michael was negligent and/or assumed the risk of injury when he rode as a passenger because he knew or should have known that Amanda was intoxicated. Amanda presented the testimony of state trooper Jeremy Wickman, the investigating officer. While the trooper was listed as a lay witness, he was never listed as an expert witness prior to trial. Over appellant's objections, and after voir dire, the trial court allowed the trooper to testify as an expert witness that following the accident, Amanda had a blood alcohol level of .227 percent, and that based on a reasonable degree of probability, Amanda was severely impaired at the time of the accident, which should have been readily apparent even to a civilian. The trooper testified, however, that he did not speak to Amanda at the scene of the accident, but that she was alert and answering questions. The trooper testified that he had made between 100 and 200 driving under the influence ("DUI") arrests, and that ten to 15 of those were for an alcohol content at or above .20 percent (that is, twice the legal limit of .10 percent). In turn, of those ten to 15 DUI arrests, only four or five were for an alcohol content between .25 and .30 percent.
{ } No evidence other than Amanda's blood alcohol level and the trooper's expert testimony was presented to show she was intoxicated. Amanda, who suffered a cerebral hemorrhage from the accident, could not remember the accident or the events immediately preceding it, including leaving the bar. She did testify she likely had at least three beers between 10:30 p.m. and 2:30 a.m. Michael likewise testified that during that period, Amanda had three or four beers. Michael, Brian, and Timothy all testified that Amanda did not appear intoxicated that night and did not exhibit signs of intoxication. Amanda told Michael and Timothy outside the bar that she was okay to drive. Amanda never expressed reservations or concerns about driving. In fact, Michael asked her twice if she was okay to drive. Twice, she said she was. Until she lost control of the car, Amanda did not exhibit signs, while driving, that she was intoxicated.
{ } A jury found Michael to be 55 percent comparatively negligent and entered a verdict in favor of Amanda. By judgment entry filed November 29, 2004, the trial court granted judgment in favor of Amanda. Appellant's motion for a judgment N.O.V. and/or new trial was subsequently overruled by the trial court. This appeal follows.
{ } In its first assignment of error, appellant argues that the trial court erred by allowing the trooper to testify as an expert witness as to Amanda's blood alcohol level at the time of the accident.
{ } A blood-alcohol test result is relevant to the issue of comparative negligence. Bishop v. Munson T
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