Lead Opinion
Timоthy Kraus (appellant) challenges the denial of the post-trial motions he filed after an unfavorable verdict in his negligence action against James E. Taylor and Harris Fuels, Inc. (appellees). This litigation requires us to consider when intoxication evidence may be admitted against a pedestrian plaintiff in a suit arising from a collision with an automobile. We are also required to consider when a history of drug and alcohol abuse is admissible against a plaintiff who alleges permanent injury. We affirm.
Appellee Taylor struck appellant on October 20, 1990, while driving a vehicle owned by appellee Harris Fuels. At the time of the accident, approximately midnight, appellant was wаlking across Street Road in Lower South Hampton Township, Pennsylvania, on his way to work at a nearby gas station. Appellant filed a negligence suit against ap-pellees seeking damages for medical expenses and for permanent injury. The case was tried before a jury in October of 1996. At trial, the court admitted evidence that appellant had a blood alcohol content in excess of 0.25 percent at the time of the accident. The court also admitted medical records establishing that appellant suffers from chronic drug and alcohol abuse. At the close of evidence, the court granted appellee Harris Fuels’ motion for a non-suit. Following deliberations, the jury found that appellee Taylor was negligent but that his negligence was not a substantial cause of the accident. Accordingly, the court recorded a verdict against appellant and discharged the jury. Appellant filed posh-trial motions, which were denied on June 9, 1997. Appellant timely appealed the judgment to this Court.
Appellant first contends that the trial court erred in admitting evidence of appellant’s chronic drug and alcohol abuse because the evidence was irrelevant, prejudicial, and privileged. We disagree.
Our standard for reviewing the relevancy of evidence admitted at trial is well established.
At the outset, the admissibility of evidence is a mattеr addressed solely to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion. Evidence is considered relevant if it logically tends to establish a material fact in the case, tends to make the fact at issue more probable, or supports a reasonable inference or prеsumption regarding the existence of a material fact.
Commonwealth v. LaCava,
Appellant relies on Labrador v. City of Philadelphia,
Moreover, Labrador is inapposite. Labrador involved a wrongful death and survival action. The trial court еxcluded evidence of decedent’s alcohol use and cirrhosis of the liver. Id. at 429-31,
This result, however, does not imply that the Commonwealth Court agreed with the trial court’s reasoning. When an appellate court reviews a lower court decision for abuse of discretion, it does not decide whether it would have reached the same conclusion if exercising its own discretion. See Kaneski v. Kaneski,
Appеllant next claims that, despite its relevance, the evidence of his chronic drug abuse should have been excluded as overly prejudicial. Even relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice or confusion. See Sprague v. Walter,
Appellant also asserts that the records of his drug and alcohol treatment are protected under statutory privileges created by 50 P.S. § 7111 (confidentiality of records of treatment in publicly funded mental facilities), 71 P.S. § 1690.108 (confidentiality of records of drug and alcohol abuse treatment), and 42 Pa.C.S. § 5944 (confidentiality of communications to licensed psychologists). The trial
We are unaware of any prior decisions of this Court or our Supreme Court deciding whether the privileges appellant references are waived by filing a personal injury lawsuit for permanent injury.
Allowing appellant to pursue a claim for permanent injury, while simultaneously barring appellees from access to appellant’s long history of drug and alcohоl abuse, “would be manifestly unfair and grossly prejudicial.” See O’Boyle,
Appellant next contends that the trial court committed reversible error by admitting evidence of appellant’s blood alcohol level at the time the incident occurred. Appellant asserts that because he was a pedestrian, rather than a driver, the evidence was not relevant. Appellant relies on Kriner v. McDonald,
[Ejvidence tending to establish intoxication on the part of a pedestrian is inadmissible unless such evidence proves unfitness to be crossing the street. Pennsylvania courts have gone to great lengths to enforce [the analogous rule relating to the intoxication of drivers]. Consequently, no reference should be made to a pedestrian’s use of alcohol unless there is evidence of intoxication or copious drinking on the part of the pedestrian; for example evidence that the injured party was staggering or had liquor on his breath gives support to such an inference.
Kriner,
None of appellant’s remaining issues are properly before this Court. Appellant’s third and fourth issues, concerning the weight and the sufficiency of the evidence,
Finally, appellant contends that the trial court erred in entering a non-suit in favor of appellee Harris Fuels. Appellant’s only theory supporting Harris Fuels’ liability is that it is vicariously liable for appellee Taylor’s negligence. Because the jury found Taylor not liable, and this verdict withstood our review, appellant cannot recover against Harris Fuels. Accordingly, this issue is moot. See generally Quigg v. Brown,
Judgment affirmed.
BECK, J., filed a concurring statement.
Notes
. In Kalenevitch v. Finger,
. Appellant’s blood alcohol level would have been inadmissible absent the additional corroborating evidence. See Whyte,
. Even if appellant had preserved his challenge to the sufficiency of the evidence, that claim would be waived by his failure to provide proper argument in the brief that he filed with this Court. A party moving for judgment notwithstanding the verdict (i.e., challenging the sufficiency of the evidence) contends that the evidence and all inferences deducible therefrom, viewed in the light most favorable to the verdict winner, is insufficient to sustain thе verdict. See Greer v. Bryant,
The argument section of appellant's brief relating to this issue does not analyze the evidence in the light most favorable to appellee Taylor, the verdict winner. Instead, appellant prеsents the evidence in the light most favorable to himself then concludes that he is entitled to a different verdict. For example, appellant asserts that he "crossed the street under an overhead light within one car length of the beginning of the intersection.” Appellant's brief at 40-41. Appellees, however, produced evidence that appellant crossed the street 62 feet east of the intersection (N.T. 10/7/96, at 101-04) and that the street lamp in the vicinity was out (N.T. 10/7/96, at 115). Appellant also asserts that appellee Taylor was travelling east in a westbound lane, appellant’s brief at 41, whereas appellees produced evidence that skid marks from the vehicle began in the eastbound lane (N.T. 10/7/96, at 104-05). Most importantly, appellant ignores the evidence that he was severely intoxicated at the time of the incident. Because appellant fails to discuss the evidence viewed in the light most favorable to the verdict winner, his brief wholly lacks appropriate argument that the lower court abused its discretion when denying his motion for judgment notwithstanding the verdict. Thus, even if preserved below, this issue would be waived by the deficiencies of appellant's brief. See Kituskie v. Corbman,
Appellant’s argument suggests a claim that the verdict was inconsistent. If appellant intended to challenge the verdict on these grounds we note that the issue was waived by his failure to object prior to the jury's discharge. See City of Philadelphia v. Gray and Williams v. SEPTA,
.Appellant later filed a supplemental post-trial motion alleging a 63rd error. See plaintiff's supplemental motion for post-trial relief, 4/10/97.
Concurrence Opinion
concurring.
I concur in the result reached in the majority opinion and join generally in the discussion therein. I write separatеly, however, to clarify further the reasons for our holding. First, I agree that the trial court did not abuse its discretion in admitting evidence of appellant’s history of alcohol and drug abuse where appellant placed his life expectancy into issue with his claim of permanent injury. An additional basis for admission, however, and one I believe to be even more persuasive, is for impeachment purposes. Appellant testified that he had been in “excellent health” prior to the accident, when in fact he had had numerous hospital admissions for alcohol dependency, and a long history of drug use, including intravenous heroin, barbiturates, LSD and amphetamines. The trial court did not err in admitting evidence of this history to allow appellees to impeach appellant’s credibility.
Appellant also challenged the admissibility of his blood-alcohol content of .25% at the time of the accident. As the majority concludes, this evidence was admissible to show appellant’s own causal negligence as a pedestrian, where there was additional corroborating evidence of intoxication, including the smell of alcohol emanating from appellant at the scene, and his behavior in crossing the street. Appellees presented evidence that, at the time of the accident, appellant was crossing a major highway, in the middle of the block, in dark clothing at about midnight, against a traffic control signal, and that he “darted” in front of oncoming traffic. With these additional comments, I join the majority opinion.