Lead Opinion
On Oсtober 27, 1994, the 1994, the appellant, Wally Grummer, was injured during a car wreck with the appellee, Ellen Cummings. Subsequently, Grummer filed a negligеnce action against Cummings seeking recovery for his damages. During the jury trial on August 5 and 6, 1997, Cummings sought to impeach Grummer’s credibility by introducing еvidence of inconsistent statements made to the investigating police officer and to treating physicians regarding Grummеr’s use of a seat belt at the time of the accident. Pursuant to Ark. Code Ann. section 27-37-703, Grummer objected to the introduction of any evidence indicating that he failed to use a seat belt. However, during an in-chambers hearing, the trial court reasоned that Grummer’s statements to his doctors for the purpose of treatment were important and, accordingly, denied Grummer’s oral motion in limine to exclude any evidence of seat-belt nonuse. The trial court noted that it would permit Cummings to elicit testimony and admit evidence of appellant’s conflicting statements solely for the purpose of challenging Grummеr’s credibility. Following closing arguments, the trial court gave the jury a limiting instruction, based upon the 1993 enactment
The failure to use a seatbelt shall not be considered under any circumstances as evidence of comparative or contributory negligence or failure to mitigate damаges, nor shall such failure be considered in the trial of any civil action with regard to negligence. Any evidence you may have received or has been provided to you regarding the failure to use a seatbelt is to be considered for the purpose of credibility of the witnesses only.
On appeal, Grummer challenges the trial court’s (1) denial of his oral motion in limine to exclude all evidence of seat-belt non-use, and (2) denial of his alleged motion for a mistrial based upon thе admission of seat-belt-nonuse evidence and an improper jury instruction. We agree with appellant’s first point on appeal and hold that the trial court abused its discretion in admitting evidence of seat-belt nonuse. Accordingly, we revеrse and remand.
Motion in limine
Following the in-chambers conference regarding the admissibility of seat-belt-nonuse evidence, Cummings cross-еxamined Grummer about his inconsistent statements to the police and his treating physicians. Grummer acknowledged that he told thе emergency room personnel that he was an unrestrained driver but that he later told Dr. Clay Lamey, Jr., his chiropractor, that he was wearing a seat belt during the accident. Grummer attributed the discrepancies to a mistake on his part. During Grummer’s testimony, his attorney requested that the trial court grant him a “continuing objection” to Cummings’s fine of questioning. Next, Officer Alfred Hobby, the investigating рolice officer, testified that Grummer told him that he was not wearing any type of seat restraint. Then, during a videotaped dеposition introduced as an exhibit, Dr. Steven Cathey, another of appellant’s treating physicians, recalled that Grummer reported wearing a seat belt at the time of the accident.
On appeal, we will not reverse a trial cоurt’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Edwаrds v. Stills,
Aрplying the balancing test of Ark. R. Evid. 403, the trial court concluded that evidence of appellant’s statements to his physicians for the purpose of treatment were “important,” probative, and warranted admission. Additionally, the trial court admonished the jury that the evidence of seat-belt nonuse could be considered only for the purpose of evaluating аppellant’s credibility and not with regard to any issue in the underlying negligence action against the appellee. In support of that position, the appellee cites Frazier v. State,
Here, however, the limiting instruсtion to the jury could not cure the highly prejudicial effect of the introduction of seat-beltnonuse evidence in a nеgligence action. Applying the Rule 403 balancing test, the prejudicial effect of the evidence far outweighed аny probative value, particularly when the appellee admits that there was other relevant, admissible evidenсe regarding the issue of appellant’s credibility, specifically, the appellant’s alleged inconsistencies аbout how the accident occurred. Accordingly, we hold that the trial court abused its discretion in admitting any evidence regarding seat-belt nonuse. In light of the foregoing, we decline to reach the merits of appellant’s second point on appeal.
Reversed and remanded.
Notes
We note that the 1993 enactment of Ark. Code Ann. section 27-37-703 was the only version of the statute raised by the parties and discussed by the trial court, although the statute was subsequently amended in 1995.
Concurrence Opinion
concurring. I agree with agree with the majority’s conclusion that the prejudicial effect of introducing evidence of seat-belt nonuse in this negligence action fаr outweighed its probative value under the Rule 403 balancing test. However, I believe our holding in this case deserves a brief сaveat. In this appeal we were not asked to address, nor do we address, the separation-of-powers dоctrine as it may apply to the General Assembly’s authority to enact Ark. Code Ann. § 27-37-703 (1997 Supp.), which restricts the admissibility of seat-belt-nonuse evidence in civil actions. That issue remains for another day.