The law in Pennsylvania is well established that “where recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably established intoxication.” Cusatis v. Reichert, 406 A.2d 787, 788-89 (Pa. Super. 1979) (citing (Critzer v. Donovan, 137 A. 665 (Pa. 1927). In Kriner v. McDonald, 302 A.2d 392, 394 (Pa. Super. 1973) the Court extended this rule to cases involving pedestrians holding that “evidence tending to establish intoxication on the part of a pedestrian is inadmissable unless such evidence proves unfitness to be crossing the street.”
In the years since the Kriner decision, Pennsylvania Courts have continued to apply this well-established rule of law: Ackerman v. Delcomico, 486 A.2d 410, 414 (Pa. Super. 1984) (holding that in the absence of additional evidence suggesting intoxication or impairment, “blood alcohol level alone may not be admitted for the purpose of proving intoxication.”); Whyte v. Robinson, 617 A.2d 380, 383-84 (Pa. Super. 1992), (holding that in the absence of evidence of conduct establishing plaintiff’s intoxication such as evidence of “staggering, stumbling, aimless wandering, or incoherent mumbling,” evidence of plaintiff’s elevated BAC, along with testimony regarding an odor of alcohol on plaintiff’s breath at the scene and statements of treating physicians regarding plaintiff’s intoxication are inadmissible as such evidence is insufficient to establish a degree of intoxication rendering a pedestrian unfit to cross the street);
Clinton v. Giles, 719 A.2d 314, 319 (Pa. Super. 1998) (holding that even where there is expert testimony interpreting blood alcohol level, there must be some corroborating evidence of a pedestrian’s intoxication or impairment before evidence of the pedestrian’s use of alcohol is deemed admissible).
In Whyte, the Superior Court of Pennsylvania reversed a judgment in favor of defendant and ordered a new trial because improper evidence of plaintiff’s intoxication was admitted at trial. 617 A.2d 380 (Pa. Super. 1992). The facts of the Whyte case are very interesting and show that the Courts are very reluctant to allow evidence of intoxication of a pedestrian unless there is corroborating evidence and testimony.
In Whyte, plaintiff was a pedestrian who was struck by a motor vehicle being operated by defendant while attempting to cross the street. A blood alcohol test was performed at the hospital revealing that plaintiff had consumed alcohol prior to the accident. At trial, defendant was permitted to question plaintiff regarding the results of the blood alcohol test. Further, defendant was permitted to introduce the uncorroborated testimony of a witness who claimed he smelled alcohol on plaintiff’s breath along with the testimony of plaintiff’s treating physician who detected a similar odor. Defendant also introduced evidence of two of defendant’s passengers who stated that they believed plaintiff to be intoxicated as they had seen him drunk in the past. These witnesses further testified that plaintiff asked for a beer and a cigarette immediately after the accident, used loud and profane language and gave medical personnel a “hard time.”
On appeal, the Superior Court granted plaintiff a new trial, holding that the trial court had committed reversible error by admitting this testimony into evidence as it was “manifestly prejudicial” and insufficient to establish a degree of intoxication rendering a pedestrian unfit to cross the street. In so ruling, the Court made specific note of the fact that the record was devoid of any evidence of plaintiff’s conduct immediately prior to the accident that may serve to establish his degree of impairment such as “staggering, stumbling, aimless wandering, glassy eyes or incoherent mumbling.”
Similarly, in Clinton, the Superior Court was again confronted with the issue of the admissibility of evidence of a pedestrian’s intoxication. In this case, the Court upheld a trial court ruling granting plaintiff’s motion in limine to exclude evidence that plaintiff had consumed alcohol on the evening of the accident in the absence of “independent corroboration of [plaintiff’s] conduct on the night of the accident.” The evidence that the defendant had intended to produce consisted of plaintiff’s blood alcohol content as indicated in a hospital lab report and the testimony of a medical expert interpreting that blood alcohol level. There were no other witnesses to the accident and the defendant acknowledged that he did not visualize plaintiff prior to hitting her. On appeal, the Court held that the trial court correctly ruled that this evidence was inadmissible “[i]n the absence of any evidence related to [plaintiff’s] conduct or fitness to cross the street on the evening of the accident.”
In handling cases involving pedestrians who have consumed alcohol, you must remember that intoxication may not be admissible. The evidence must be sufficient to prove a pedestrian’s unfitness to be crossing the street before its probative value is significant enough to overcome the manifest and unavoidable prejudice that is associated with such evidence.
Joe Cullen is a Shareholder in Stark & Stark’s Yardley, PA office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Cullen.