Danny Secrist and Erin Secrist appeal the Judgment of the Circuit Court of Buchanan County in their favor for $31,500 and $600 respectively in damages on their claims against Treadstone, L.L.C., and in favor of John Johntz on their claims against him. We affirm in part, reverse in part, and remand.
Factual Background
This appeal arises out of an accident on November 3, 2008 in a building (“the United Building”) owned by respondent Tread-stone L.L.C. (“Treadstone”), which was itself half owned by respondent John Johntz (“Johntz”). Danny Secrist (“Secrist”) was employed by Helsel Construction which had contracted through The Framing Firm to perform renovation work on the United Building. The United Building had an elevator, designed and installed in the 1920s. The outer door to the elevator was wooden with small glass panes. Immediately behind those doors was a metal gate that slides across the opening of the elevator to allow access. The elevator was designed to operate with an operator stationed inside the car, but the doors could be opened from the outside if one had a key, or apparently any of a number of
On November 3, 2008, Secrist gathered his materials he was going to take away from the worksite on the second floor and placed them in front of the elevator. The elevator operated in a way that a person was not able to call the elevator to the desired floor but instead had to go and retrieve the elevator on the floor where it was located. Secrist walked down to the first floor, where he believed the elevator was located, and found the outer door and gate to the elevator were closed. Secrist grabbed a bent wire that had been left there specifically for the purpose of opening the elevator door, stuck the wire in the key hole to jimmy the lock, opened the doors and gate, and stepped into the elevator shaft. Unbeknownst to Secrist, the elevator was not on the first floor and he fell down the shaft, landing in the basement below. As a result of the fall, Secrist sustained severe injuries.
Secrist filed suit on the theory of general negligence against Treadstone (Count I), L & H Renovations (Count II)
In their sole point on appeal, Appellants argue the trial court erred in admitting Secrist’s positive drug test result for marijuana reflecting a THC level of 50 ng/ml for the purposes of comparative fault and impeachment because Treadstone and Johntz failed to lay the foundation required by law for the admission of marijuana consumption and impairment evidence by not introducing evidence from which a jury could reasonably infer that Secrist had a sufficient level of marijuana in his system to be impaired at the time of the accident.
Standard of Review
The Appellants claim that the evidence of his THC level was inadmissible on this
Appellants argue that the foundation for the marijuana evidence was not properly laid by Treadstone making it inadmissible as being incompetent. “[Incompetent] is constantly used loosely as equivalent to ‘inadmissible’ on any ground. This use should be avoided.” Black’s Law DICTIONARY (9th ed.2009) (quoting John H. Wig-more, A Students’ Textbook of the Law of Evidence 36 (1935)). The mere use of the word “incompetent” does not change our standard of review when the essential question is whether the evidence was sufficiently relevant to be admissible.
“The trial court is accorded considerable discretion in ruling on the admissibility of evidence, particularly where a subjective determination of relevancy must be made.” Rock v. McHenry,
The admission or exclusion of evidence rests in the sound discretion of the trial court, and the court’s decision will be reversed only if it constitutes an abuse of discretion. Oldaker v. Peters,817 S.W.2d 245 , 250 (Mo. banc 1991). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Id. We review for prejudice, not mere error, and will reverse only if the error was so prejudicial that the defendant was deprived of a fair trial. Elliott v. State,215 S.W.3d 88 , 93 (Mo. banc 2007).
Peters v. ContiGroup,
Analysis
Before we begin, there is disagreement between the parties as to what is properly before this Court. According to Appellants, the evidence of Secrist’s THC blood levels was admitted for both the issue of
Comparative Fault
We will first address the admission of the evidence for the purposes of comparative fault. “To be admissible, evidence must be logically and legally relevant.” Claus v. Intrigue Hotels, LLC,
Evidence is logically relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case.
State v. Tisius,
Our case law has consistently recognized a substantive distinction between the evidence required to sustain a finding that a person is impaired as a result of the ingestion of alcohol verses other drugs. See State v. Friend,
In Friend, this court considered whether there was sufficient evidence to support the submission to the jury that the defen
In Clarkston, the defendant challenged his conviction for driving while intoxicated.
Somewhat closer to the issues before us, but still not on point, is State v. Jones, in which a toxicology report was entered into evidence at trial that showed the victim, who was involved in an altercation with the defendant, had ingested cocaine prior to his death and had a blood alcohol content of 0.21 percent.
There must be evidence beyond the mere fact that a drug was present in someone’s system in a particular quantity before a reasonable inference can be made that the person is impaired therefrom. The fact that Secrist tested positive for 50 ng/ml of THC (marijuana) means nothing without context.
We agree that it was error to admit the evidence of Secrist’s THC levels for the purpose of establishing fault without more evidence to give the jury an indication as to: (1) what effect that level of that drug in the body would reasonably have on that individual; (2) that the behaviors exhibited by that person were consistent with having that drug and the amount thereof in his system; and (3) the proximity in time between when the drug was ingested and the events to which the impairment is relevant. See Friend,
Treadstone argues that Appellants should have (1) requested a limiting instruction; or (2) Secrist could have testified concerning his marijuana use. As previously mentioned, the trial court explicitly ruled that the evidence regarding Secrist’s THC levels was proper with respect to the issue of comparative fault and, even though Treadstone denies this to be true, Treadstone did in fact argue that this evidence established that Secrist’s negligence contributed to his own injury. Also, while it is true Secrist could have testified concerning his marijuana use, this has no relevance to whether admitting the evidence concerning THC levels independent of context was error. It was not his burden to make the evidence logically relevant, that burden remains with the proponent of the evidence. State v. Allen,
Impeachment
Appellants also argue the admission of evidence regarding Secrist’s
Relief
In order to obtain relief for the improper admission of this evidence for comparative fault and impeachment, Appellants must not only demonstrate trial court error but also that the error resulted in prejudice. Elliott,
Treadstone argues that Appellants were not prejudiced because similar evidence was properly admitted in the form of testimony by Mike Johnson (“Johnson”) who testified that Secrist had slurred speech, inferring that he was under the influence of an intoxicant. See State v. Edberg,
Appellants ask us to remand this case back to the trial court so they can have a new trial as to their claims against both Treadstone and John Johntz. The verdict here was unequivocally in favor of Johntz as the jury found Johntz to be zero percent at fault. For this reason, we do
The cause must be remanded for a new trial with respect to defendant Treadstone as to all issues, for “in a comparative fault case, the issues of fault and damages are blended and interwoven, and ‘it would be a rare case in which a jury would not consider the effect of its determination of percentages of fault in terms of the damages to be eventually awarded to the plaintiff.’ ” Talley v. Swift Tramp. Co.,
Appellants Point on Appeal is granted in part.
Conclusion
The Judgment of the trial court is hereby affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
All concur.
Notes
. "The pertinent facts are viewed in the light most favorable to the jury's verdict." Hayes v. Price,
. The record is unclear what happened with the claims against L & H Renovations, but these claims were not submitted to the jury and they are not a party to this appeal. Therefore we will not address them further.
. While there were multiple counts in the petition, all claims were submitted under one verdict form. On that verdict form the jury found Defendant John Johntz to be 0% at fault, Defendant Treadstone LLC to be 20% at fault and Plaintiff Danny Secrist to be 80% at fault.
.The jury verdict awarded Secrist $157,000 and Mrs. Secrist $3,000 in damages, before the application of the percentage of fault.
. All statutory citations are to RSMo 2000 as updated through the most recent cumulative supplement, unless otherwise indicated.
. While the record indicates this level was determined from a blood test, there is no indication if this was measured in whole blood, plasma or some other blood fraction which could also affect the meaning of the level found.