Mulholland v. Henkels & McCoy Inc.

26 Pa. D. & C.4th 542, 1995 Pa. Dist. & Cnty. Dec. LEXIS 135
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedApril 26, 1995
Docketnos. 93-3884 and 93-2459
StatusPublished

This text of 26 Pa. D. & C.4th 542 (Mulholland v. Henkels & McCoy Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mulholland v. Henkels & McCoy Inc., 26 Pa. D. & C.4th 542, 1995 Pa. Dist. & Cnty. Dec. LEXIS 135 (Pa. Super. Ct. 1995).

Opinion

BATTLE, J,

Mark Mulholland filed suit against defendants, Michael Masi and Henkels & McCoy Inc. Michael Masi also filed suit against Mark Mulholland. The actions are consolidated. They are the result of injuries which Mark Mulholland sustained in an accident involving his automobile and construction equipment at Henkels & McCoy’s work site. Mark Mulholland filed a motion in limine to preclude evidence of, and reference to, his consumption of alcohol and his blood alcohol level. For the reasons stated herein, we deny this motion.

The pertinent facts are as follows. At 12:50 a.m., on December 20, 1991, Mark Mulholland’s automobile collided with a loader/backhoe at Henkels & McCoy’s construction site on Lancaster Avenue. Mark Mulholland’s vehicle was traveling eastbound on Lancaster Avenue and the loader was located in the median. At the time, the construction crew was “breaking down” the work site. Mark Mulholland’s automobile was the only vehicle traveling within several hundred feet of the area. The roadway was clear, dry, and straight. He was familiar with the roadway due to local residence and frequent travel.

Following the accident, statements were obtained from Mark Mulholland and his passenger, Michael Mulholland. These statements conflict as to the amount [544]*544of alcohol consumed. All statements indicate that, prior to the collision, the Mulhollands were at the Main Lion bar on Lancaster Avenue. In a July 24, 1992 interview with his father’s insurance company, Mark Mulholland stated that he had consumed “at least” three beers. However, during his May 6,1994 deposition, he testified that he could not recall the amount he had consumed. Also, Michael Mulholland, while at the accident scene, informed police that both brothers had consumed approximately eight to 10 beers that night. However, during his December 23,1991 interview with the insurance company, Michael stated that he had consumed eight beers and while he could not guess how many his brother had, he said that it was less.

At the accident scene, the construction crew and the first officer to respond noted a strong odor of alcohol emanating from the vehicle. Also, as Mark Mulholland was transported by helicopter to the hospital, various paramedic personnel smelled an odor of alcohol emanating from him. Thereafter, various hospital personnel, including a trauma surgeon, noted the smell of alcohol on Mark Mulholland’s breath.

While at the hospital, blood was drawn from Mark Mulholland at 2:14 a.m. which revealed a blood alcohol content of 0.168 percent. Henkels & McCoy and Michael Masi, the operator of the loader, intend to introduce at trial expert testimony referencing the significance of a blood alcohol content of 0.168 percent.

In Pennsylvania, the law on the admissibility of evidence of intoxication to prove negligence in civil litigation is well-settled. Our Supreme Court, in Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956), stated that:

“ [Wjhile proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which [545]*545proves unfitness to drive: Critzer v. Donovan, 289 Pa. 381, 384 (1927).” Fisher, supra at 148, 125 A.2d at 476. The determination of type and amount of evidence necessary to establish a degree of intoxication which proves unfitness to drive is a question of fact. The courts have expounded on the issue and an analysis of the spectrum of these decisions is pertinent to our determination.

Our Superior Court found the following combinations of evidence were sufficient to establish intoxication proving unfitness to drive.

In Crosby v. PennDOT, 378 Pa. Super. 72, 548 A.2d 281 (1988), plaintiff’s automobile struck a tree and a utility pole. At trial, plaintiff attempted to exclude evidence of his intoxication. Defendant presented the following: testimony of police who arrived at the scene and smelled an odor of alcohol on plaintiff; plaintiff’s blood alcohol content of 0.101 percent; testimony of a toxicologist who opined that this blood alcohol level rendered the individual unfit to drive; and evidence that plaintiff was familiar with the road, but drove off of it, 100 feet directly into a tree.

The trial court admitted the evidence and the Superior Court affirmed holding that “[t]aken in its totality, this evidence revealed far more than a ‘mere hint of intoxication’ and certainly justified the submission to the jury. ...” Crosby, supra at 77-78, 548 A.2d at 284 (quoting trial court opinion at 4).

Similarly, in McKee by McKee v. Evans, 380 Pa. Super. 120, 551 A.2d 260 (1988), plaintiff presented defendant’s deposition testimony that he consumed approximately seven or more 12-ounce glasses of beer within a three hour period immediately before the accident and plaintiff’s opinion that he was probably intoxicated.

The trial court admitted the evidence and the Superior Court affirmed stating that, “ [i]n our view, these state[546]*546ments, alone, are sufficient evidence of intoxication to introduce the questioned deposition testimony.” McKee by McKee, supra at 163, 551 A.2d at 281.

Further, in Ackerman v. Delcomico, 336 Pa. Super. 569, 486 A.2d 410 (1984), plaintiff, a pedestrian, was struck by defendant’s automobile. Defendant presented testimony of plaintiff’s girlfriend and roommate stating that plaintiff had been drinking beer since late in the afternoon; the testimony of defendant and medical personnel that plaintiff smelled strongly of beer; plaintiff’s blood alcohol content of 0.195 percent; hospital records which revealed that plaintiff admitted drinking heavily; and evidence that plaintiff had slurred speech and a low level of alertness following the accident.

The trial court admitted the evidence and our Superior Court affirmed. In so doing, it stated that “[ljooking at all the evidence, there is much more than a suggestion of intoxication and, therefore, we conclude that the evidence of appellant’s intoxication was properly admitted, and was not prejudicial. ...” Ackerman, supra at 575, 486 A.2d at 413.

Also, in Emerick v. Carson, 325 Pa. Super. 308, 472 A.2d 1133 (1984), the plaintiff, a pedestrian, was struck by defendant’s automobile. At trial, defendant presented the following evidence: plaintiff’s blood alcohol content of 0.185 percent; expert testimony referencing the effect that alcohol level will have on an individual; evidence that plaintiff stood and remained in the road despite nearly being hit prior to the accident; plaintiff’s admission that he “had quite a bit to drink;” and defendant’s testimony that he smelled a strong odor of alcohol on plaintiff’s breath.

The trial court admitted the evidence and the Superior Court affirmed stating that “[t]he aforesaid evidence . . . adequately demonstrated [defendant’s] intoxication at the time of the accident.” Emerick, supra

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Related

Fisher v. Dye
125 A.2d 472 (Supreme Court of Pennsylvania, 1956)
Hawthorne v. Dravo Corp., Keystone Div.
508 A.2d 298 (Supreme Court of Pennsylvania, 1986)
McKEE BY McKEE v. Evans
551 A.2d 260 (Supreme Court of Pennsylvania, 1988)
Crosby v. Com., Dept. of Transp.
548 A.2d 281 (Supreme Court of Pennsylvania, 1988)
BILLOW v. Farmers Trust Co.
266 A.2d 92 (Supreme Court of Pennsylvania, 1970)
Ackerman v. Delcomico
486 A.2d 410 (Supreme Court of Pennsylvania, 1984)
Locke v. Claypool
627 A.2d 801 (Superior Court of Pennsylvania, 1993)
Emerick v. Carson
472 A.2d 1133 (Supreme Court of Pennsylvania, 1984)
Cusatis v. Reichert
406 A.2d 787 (Superior Court of Pennsylvania, 1979)
Whyte v. Robinson
617 A.2d 380 (Superior Court of Pennsylvania, 1992)
Critzer Et Ux. v. Donovan
137 A. 665 (Supreme Court of Pennsylvania, 1927)

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Bluebook (online)
26 Pa. D. & C.4th 542, 1995 Pa. Dist. & Cnty. Dec. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulholland-v-henkels-mccoy-inc-pactcompldelawa-1995.