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Kennedy v. Griffin2/3/2004
On May 29, 1998, Kennedy was driving his pickup truck on U.S. Route 29 in Cherokee County, approaching the intersection with Secondary Road 164. Scott Griffin was driving an eighteen-wheeler truck in the scope of his employment with Dick Simon Trucking, Inc., on Secondary Road 164. At the intersection, Griffin pulled out in front of Kennedy to make a left turn onto U.S. Route 29. Kennedy's truck collided with the rear set of tires on the trailer of Griffin's truck. The weather was clear on the day of the accident.
Maxie Littlejohn witnessed Kennedy applying his brakes at the last second before impact, causing Littlejohn to wonder why Kennedy did not slow down to avoid the accident. The investigating officer found short skid marks in Kennedy's lane, suggesting Kennedy was not paying attention or panicked and froze before slamming on the brakes. Griffin testified that he saw Kennedy's truck and thought he had a safe distance to make the turn. Kennedy testified that Griffin bolted out in front of him, blocked both lanes of traffic, and then slammed on his brakes, forcing Kennedy to apply his brakes and swerve.
Kennedy was taken to the hospital by ambulance for treatment of his injuries. As part of a routine practice when treating victims of automobile accidents, the emergency room physician performed a blood test on Kennedy to determine if any substances were present in his system that would react adversely to medicines administered to him. The results of the blood test indicated the presence of marijuana in Kennedy's blood stream. The test results did not indicate the level of drugs in Kennedy's system or how long the drugs had been in his system. Nothing in the record indicates that marijuana was found in or around Kennedy's vehicle or that Kennedy smelled of marijuana.
Kennedy filed suit against Griffin and Dick Simon Trucking, Inc., seeking to recover damages for negligence. Prior to trial, Kennedy filed a motion in limine to exclude the admission of the blood test analysis showing the presence of marijuana in his system. The judge denied the motion. Kennedy's treating physician later testified before the jury that the toxicology report showed Kennedy had marijuana in his system, but the report did not indicate the level of intoxication or how long the marijuana had been in his system.
The trial judge instructed the jury on the law of negligence per se under the driving under the influence statute. The jury returned a verdict finding Kennedy was seventy percent at fault for the accident and Griffin and Dick Simon Trucking were thirty percent at fault. Kennedy, thus, was unable to recover any damages. He moved for a new trial, and the trial judge immediately denied the motion. Kennedy appeals.*fn1
ISSUES
I. Did the trial judge err in allowing the admission of evidence that Kennedy had marijuana in his system?
II. Did the trial judge err in charging the jury on the law of negligence per se?
SCOPE OF REVIEW
The denial of a motion for a new trial is within the trial judge's discretion and will not be reversed on appeal absent an abuse of discretion. Haselden v. Davis, 341 S.C. 486, 495, 534 S.E.2d 295, 300 (Ct. App. 2000), aff'd, 353 S.C. 481, 579 S.E.2d 293 (2003).
DISCUSSION
I. Admission of Marijuana Evidence
Kennedy argues he was entitled to a new trial due to the admission of the toxicology test results into evidence because the probative value of the results was substantially outweighed by undue prejudice.
"Evidence is relevant and admissible if it tends to establish or make more or less probable some matter in issue." Hoeffner v. The Citadel, 311 S.C. 361, 365, 429 S.E.2d 19
Page 1 2 3 4 South Carolina DUI Attorneys
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