Perkins v. Olson
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 15269-3-III
Title of Case: Tami L Perkins Ind & as Guardian for Leela Perkins
v.
Melvin D. Anderson, et al
File Date: 07/01/97
SOURCE OF APPEAL
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Appeal from Superior Court of Walla Walla County
Docket No: 90-2-00552-7
Judgment or order under review
Date filed: 10/05/95
Judge signing: Hon. Donald Schacht
JUDGES
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Authored by Stephen M. Brown
Concurring: John A. Schultheis
Philip J. Thompson
COUNSEL OF RECORD
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Counsel for Appellant(s)
John G. Schultz
Leavy Schultz Davis & Fearing
2415 W Falls Ave
Kennewick, WA 99336
William R. Hickman
Reed McClure
3600 Columbia Ctr
701 5th Ave
Seattle, WA 98104-7081
Counsel for Respondent(s)
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
Robert K. Dawson
Pence & Dawson
1000 2nd Ave Ste 3620
Seattle, WA 98104-1004
Marc L. Silverman
Attorney At Law
11033 NE 24th St Ste 200
Bellevue, WA 98004-2941
Counsel for Minor(s)
Robert K. Dawson
Pence & Dawson
1000 2nd Ave Ste 3620
Seattle, WA 98104-1004
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TAMI L. PERKINS, individually and )
as parental guardian for LEELA ) No. 15269-3-III
PERKINS, a minor, )
)
Respondent, ) Division Three
v. ) Panel Two
)
DARRYL A. OLSON, ) UNPUBLISHED OPINION
)
Appellant. ) FILED
BROWN, J. Darryl Olson appeals a jury verdict awarding $3 million to
Tami Perkins for injuries suffered in an automobile collision. He assigns
error to a number of evidentiary rulings, a jury instruction, and failure
to reduce the amount of the award. We affirm.
FACTS
Darryl A. Olson spent the evening of March 17, 1990 drinking. Around
midnight he purchased a keg of beer and joined Melvin Anderson and a number
of friends at a party in the mountains near Walla Walla. For the next few
hours, Mr. Olson, Mr. Anderson and others drank beer. About 3:00 in the
morning the party broke up. By then Mr. Olson was awake lying in his car,
dazed and obviously inebriated. It was disputed how Mr. Anderson obtained
the car keys but it was undisputed Mr. Anderson drove himself, Mr. Olson
and five other young people back towards town in Mr. Olson's car.
Around this same time, Tami Perkins was driving away from town towards
her grandmother's home. She had consumed one large liqueur drink around
9:00 the previous evening. Subsequently, she had a long conversation with
her former husband, and was on her way to pick up her 2-year-old daughter.
As she came around a curve, her car was struck by the car driven by Mr.
Anderson.
Mr. Anderson's recollection of the collision is that just as the road
began a sharp curve he saw very bright lights immediately before impact,
and the next thing he knew he was in a field. Mr. Olson also recalls
seeing bright lights only moments before the collision. No one in the car
driven by Mr. Anderson was seriously injured.
Ms. Perkins has no memory of the collision. She sustained numerous
injuries in the accident. The most serious was an injury to the heart
which caused heart failure and permanent damage to her heart muscle. She
also suffered a ruptured bladder, several broken teeth, and a broken leg
which eventually left her with a shortened leg. Experts testified the
heart injury placed Ms. Perkins at increased risk of heart failure and
significantly reduced her life expectancy.
Within an hour of the accident, emergency room staff ran a blood test
which showed Ms. Perkins' blood serum alcohol level was .082. Based on
unspecified hearsay, a physician who saw her in the emergency room
concluded she was an alcoholic. The same doctor also determined she was
intoxicated based on his smelling alcohol on her breath and observing her
speech was slurred.
Ms. Perkins sued both Mr. Anderson and Mr. Olson. Her claim against
Mr. Anderson was settled before trial. Her claims against Mr. Olson
included negligent entrustment of his car to Mr. Anderson, knowing Mr.
Anderson had consumed alcohol, and negligent supervision of Mr. Anderson's
driving of Mr. Olson's car. Mr. Olson denied these claims. He also
alleged Ms. Perkins' intoxication and negligent driving were a proximate
cause of the collision.
EVIDENTIARY RULINGS
First, Mr. Olson contends the court erred in admitting Dr. Alan R.
Ertle's opinion that Ms. Perkins was intoxicated. The trial court's
rulings on admissibility of opinion testimony, both lay and expert, are
reviewed for abuse of discretion. State v. Ortiz, 119 Wn.2d 294, 308, 831
P.2d 1060 (1992). Conclusory, speculative expert opinions lacking adequate
foundation are inadmissible. Safeco Ins. Co. v. McGrath, 63 Wn. App. 170,
817 P.2d 861 (1991), review denied, 118 Wn.2d 1010 (1992). An opinion,
whether lay or expert, is admissible only if it is based on personal
knowledge and helpful to the jury. Ortiz, 119 Wn.2d 294 at 308-10. Dr.
Ertle did not suggest he could determine the level of Ms. Perkins'
intoxication based solely on the odor of intoxicants and slurred speech,
nor did he suggest any other facts within his knowledge to support the
inference she was intoxicated. The trial court determined Dr. Ertle's
opinion was based on speculation. His factual observations were permitted
to be presented to the jury; his opinion would not have helped the jury to
understand the significance of those facts. Both sides of the case were
permitted to fully develop the facts during the trial. There was no abuse
of discretion.
Second, Mr. Olson contends the court erred in excluding a hospital
record of the results of Ms. Perkins' blood alcohol test. Results of a
blood alcohol test are admissible in a civil case and are valid if
performed according to methods approved by the state toxicologist; a person
possessing a valid permit issued by the state toxicologist. RCW 46.64.506
(a) and (c); Tennant v. Roys, 44 Wn. App. 305, 722 P.2d 848 (1986).
Admittance of the record is not mandatory. Rather, the subject's alcohol
concentration "is evidence that may be considered with other competent
evidence . . . ." RCW 46.64.506(a).
The individual who performed Ms. Perkins' blood test did not have a
valid permit. The state toxicologist recommends reporting the results of
the test in terms of grams per 100 milliliters of whole blood. While this
method is not mandatory, the test performed on Ms. Perkins' blood serum,
rather than whole blood, would have produced results which overstated the
proportion of alcohol compared with results expressed in terms of whole
blood. Compare State v. Garrett, 80 Wn. App. 651, 910 P.2d 552 (1996)
(failure to comply with mandatory procedure requires exclusion of test
results). The court did not abuse its discretion in excluding the evidence
which had questionable probative value.
Third, Mr. Olson contends the court erred in excluding a dental record
showing Ms. Perkins believed she suffered from alcoholism. He argues the
evidence was relevant to the issue of damages. Evidence of a plaintiff's
alcoholism may be admissible on the issue of damages only where there is
expert testimony indicating a relationship between the alcoholism and loss
of earning capacity, or reduced life expectancy. Kramer v. J.I. Case Mfg.
Co., 62 Wn. App. 544, 815 P.2d 798 (1991). No such testimony was offered
here. Mr. Olson also argues the evidence was admissible to impeach Ms.
Perkins' testimony she only had one drink the evening before the accident.
Extrinsic evidence not otherwise admissible cannot be used to impeach a
witness. State v. Hubbard, 103 Wn.2d 570, 576, 693 P.2d 718 (1985).
Substance abuse or alcoholism other than in the above context would
normally have very little impeachment value and slight relevance to motive
to lie, bias, or prejudice. The evidence's remaining probative value would
be outweighed by its prejudicial effect under ER 403. State v. Carlson, 61
Wn. App. 865, 875, 876, 812 P.2d 536 (1991), review denied, 120 Wn.2d 1022,
844 P.2d 1017 (1993). This evidence would more likely be termed
"collateral" and therefore inadmissible. State v. Rosborough, 62 Wn. App.
341, 349, 814 P.2d 579, review denied, 118 Wn.2d 1003 (1991). The court
did not err in excluding the evidence.
Fourth, Mr. Olson contends the court erred in granting Ms. Perkins'
motion to exclude evidence she engaged in two altercations in the years
following the accident. He argues this evidence was relevant to show her
injuries did not prevent her from engaging in strenuous physical activity.
There was no evidence Ms. Perkins' provoked the first incident; indeed, the
scant evidence suggests she was assaulted by a companion. The second
"altercation" consisted of her having accidentally struck a police officer
while gesturing. Neither incident has any relevance to the issue of
whether injuries sustained in the collision affected Ms. Perkins' ability
to pursue her customary activities. Such evidence would normally be
excluded as merely bad acts under ER 404. Again, a balancing under ER 403
favors exclusion. Exclusion of the evidence was not an abuse of
discretion.
Fifth, Mr. Olson challenges admission of hearsay testimony. The
investigating officer obtained tape recorded statements from numerous
witnesses. Mr. Olson lodged a hearsay objection to the officer's testimony
as to the substance of those statements. The court overruled the
objection, indicating the statements were admissible as business records
and as facts supporting the officer's opinion as to the cause of the
accident. Mr. Olson contends this was error.
The statements are hearsay. ER 801. Although the trial court
admitted them in part as business records, Ms. Perkins does not now claim
they were admissible under the business records exception. See United
States v. Snyder, 787 F.2d 1429 (10th Cir. Kan.), cert. denied, 479 U.S.
836, 107 S. Ct. 134, 93 L. Ed. 2d 78 (1986). She argues Mr. Olson waived
his objection by failing to articulate why the business records exception
does not apply. State v. Boast, 87 Wn.2d 447, 553 P.2d 1322 (1976). Mr.
Olson advised the court the basis for his objection was the rule excluding
hearsay, thereby preserving the issue for appeal.
Many of the hearsay statements about events immediately preceding the
collision were properly admitted as facts or data, on which the officer
relied, as the basis for forming an opinion as to the cause of the
accident. ER 703. But several of the statements made by Mr. Olson, Mr.
Anderson, Mr. Anderson's brother Abe, and Shawn Stockman involved whether
Mr. Olson had given his car keys to Mr. Anderson. Those statements were
not related to the cause of the accident and were not admissible under ER
703.
Erroneous admittance of testimony may be cured or waived by the
objecting party's use of the same or similar evidence for his own purposes.
Storey v. Storey, 21 Wn. App. 370, 585 P.2d 183 (1978), review denied, 91
Wn.2d 1017 (1979). Any error with respect to the statements of Mr. Olson
or the Anderson brothers was cured or waived when these three later
testified and their recorded statements were again introduced during their
testimony.
During cross-examination, the trooper had testified as to additional
statements by Mr. Olson, and Melvin and Abe Anderson, plus statements from
an additional witness who had been a passenger in Mr. Olson's car. Mr.
Stockman's statements were then introduced through the trooper on redirect
examination. Thus, Mr. Olson waived his objection to Mr. Stockman's
hearsay statements.
We decline to consider Mr. OlsOn's argument the statements should have
been excluded pursuant to RCW 46.52.080. This argument was not made in the
trial court and does not affect Ms. Perkins' right to maintain this action.
See Maynard v. McCann, 77 Wn.2d 616, 623, 465 P.2d 657 (1970).
JURY INSTRUCTIONS
Mr. Olson contends the court erred in instructing the jury Ms.
Perkins' intoxication was not a proximate cause of the collision. It is
error for a court to submit to a jury the issue of a driver's intoxication
when there is no substantial evidence to support such a finding or that she
was affected by intoxicating liquor. Madill v. Los Angeles Seattle Motor
Express, Inc., 64 Wn.2d 548, 552, 392 P.2d 821 (1964). Mere evidence of
consumption of small amounts of alcohol without other evidence of
intoxication is insufficient to present a jury question on intoxication.
See Bohnsack v. Kirkham, 72 Wn.2d 183, 192-93, 432 P.2d 554 (1967). During
opening argument counsel for Mr. Olson emphasized his theory that Tami had
been drinking and her drinking was a cause of the collision. There was no
evidence Ms. Perkins was intoxicated or affected by intoxicants at the time
of the collision. The jury instruction was proper.
REDUCTION OF DAMAGES
Mr. Olson contends the court erred in refusing to reduce the amount of
damages awarded by the jury. An award of damages may be reduced if it is
outside the range of substantial evidence, is so large as to shock the
conscience of the court or is tainted by manifest passion or prejudice.
Henderson v. Tyrell, 80 Wn. App. 592, 630-33, 910 P.2d 522 (1996). Mr.
Olson has not argued the verdict in the present case was shocking or the
product of passion or prejudice. In light of the extensive and
extraordinary injuries Ms. Perkins suffered, the verdict is not shocking
and does not appear to be tainted.
Affirmed.
A majority of the panel has determined this opinion will not be
printed in the Washington Appellate Reports, but it will be filed for
public record pursuant to RCW 2.06.040.
Brown, J.
WE CONCUR:
Schulthies, A.C.J.
Thompson, J.