J-S73026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES MINOR                           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
SHAEFFER'S ULTRABRIGHT CARPET           :   No. 388 MDA 2017
CLEANING                                :

            Appeal from the Judgment Entered March 20, 2017
  In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                            2011-CV-7025-CV


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                            FILED MARCH 15, 2018

      Appellant, Charles Minor, appeals from the trial court’s March 11,

2016, and February 2, 2017 Orders, as made final by the March 20, 2017

entry of Judgment in favor of Appellee, Shaeffer’s Ultrabright Carpet

Cleaning, in this premises liability action. On appeal, Appellant challenges

the trial court’s Order permitting the introduction of evidence of his alcohol

consumption on the day of his fall. After careful review, we affirm.

      The facts and procedural history are as follows. On March 26, 2010,

between 2:00 PM and 2:30 PM, Appellant fell down two or three steps

outside the apartment building in Harrisburg in which he resided. Appellant

fractured his ankle when he allegedly tripped and fell over a hose used by an

employee of Appellee as the employee was cleaning a second-floor

apartment.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S73026-17


        Shortly after his fall, Appellant reported to Harrisburg Hospital.

Harrisburg Hospital Emergency Department triage staff noted upon his

arrival that Appellant had been drinking alcohol.1     Appellant’s admission

record prepared by Dr. Jonas Varaly indicates Appellant’s blood alcohol

content (“BAC”) level at 0.07% at 4:58 PM.2 Appellant admitted that he had

consumed “less than a beer.”3 Harrisburg Hospital staff treated Appellant for

a fractured and dislocated ankle and administered him Dilaudid, Morphine,

Zofran, and Ativan.

        On July 21, 2011, Appellant filed a Complaint raising one count of

Personal Injury (Negligence) against Appellee.4    Appellee filed Preliminary

Objections to Appellant’s Complaint on September 6, 2011. On September

20, 2011, Appellant filed a First Amended Complaint.     Appellee again filed

Preliminary Objections on October 7, 2011.         Appellant filed a Second

Amended Complaint on October 31, 2011.            Appellee filed Preliminary

Objections to the Second Amended Complaint on November 21, 2011. On
____________________________________________


1Appellant’s hospital record contains the notation “ETOH today.” ETOH is an
acronym for ethyl alcohol, which is the type of alcohol found in all alcoholic
beverages.

2 Appellant testified at his deposition that he “had a couple of sips of beer.
It wasn’t even a full beer. I just opened the beer, and I think I might have
had just 2 sips.” Deposition, 6/11/13, at 44.

3   Appellant’s Brief at 18.

4 Appellant raised the same claim against his landlord, Elias Harbilas.
Appellant stipulated to Harbilas’ dismissal on December 5, 2013.



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December 12, 2011, Appellant filed a Third Amended Complaint. On April

17, 2012, Appellee filed an Answer with New Matter to Appellant’s Third

Amended Complaint. On May 22, 2012, Appellant answered Appellee’s New

Matter.

       Almost four years later, on February 29, 2016, Appellant filed a Motion

in Limine to preclude argument, evidence, or testimony from Appellee’s

expert witness, Dr. James Roberts, regarding the impairment Appellant

suffered as a result of the consumption of alcohol on the day of his fall. On

March 7, 2016, Appellee filed a response to Appellant’s Motion. By Order,

docketed on March 11, 2016, the trial court denied Appellant’s Motion.

       A four-day jury trial commenced on September 25, 2016. Appellant

preserved his objection to the admission of Dr. Roberts’5 testimony and

other evidence of Appellant’s impairment caused by his intoxication on the

day of his injury by placing it on the record on the first day of testimony.

       On September 29, 2016, the jury returned a verdict in favor of

Appellee. Appellant filed a Post-Trial Motion on October 10, 2016. The court

denied this Motion on February 2, 2017. On February 16, 2017, Appellant

filed a Motion for Reconsideration. On March 6, 2017, before the trial court



____________________________________________


5 Dr. Roberts is a board-certified emergency medicine physician and
toxicologist whom the court qualified as an expert without any objection by
Appellant.



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ruled on Appellant’s Motion for Reconsideration,6 Appellant filed a Notice of

Appeal.7

       Appellant raises the following two issues on appeal:

       1. Did the trial court err in denying Appellant’s Motion in Limine
          to exclude any testimony, evidence[,] or argument regarding
          Appellant’s blood alcohol content at the time of his fall, in the
          absence of corroborating evidence of Appellant’s intoxication?

       2. Did the trial court err in denying Appellant’s Motion for Post-
          Trial Relief, seeking a new trial, based upon the fact that
          Appellee was permitted to introduce uncorroborated evidence
          of Appellant’s alleged intoxication?

Appellant’s Brief at 5.

       Our review of this case involves both the trial court’s denial of

Appellant’s Motion in Limine and the denial of his Motion for a New Trial. In

both cases, “we apply an abuse of discretion standard.”            Coughlin v.

Massaquoi, 170 A.3d 399, 403-04 (Pa. 2017) (citation omitted).

       In Coughlin, our Supreme Court recently held that “the admissibility

of BAC evidence is within the trial court’s discretion based upon general rules

governing the admissibility of evidence.”        Coughlin, 170 A.3d at 400-01

(citing Pa.R.E. 401-403).
____________________________________________


6The trial court denied Appellant’s Motion for Reconsideration on March 11,
2017.

7Appellant filed his Notice of Appeal prematurely, as the prothonotary had
not yet entered Judgment in favor of Appellee. However, on March 20,
2017, Appellant filed a Praecipe for entry of Judgment, and we treat the
appeal as timely filed after the final Judgment was entered. See Pa.R.A.P.
905(a)(5).



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       Generally, evidence is admissible if it is relevant, i.e. if it “logically

tends to establish a material fact in the case, tends to make a fact at issue

more or less probable, or supports a reasonable inference or presumption

regarding a material fact[.]” Commonwealth v. Jordan, 65 A.3d 318, 324

(Pa. 2013).       However, a court may exclude relevant evidence “if its

probative value is outweighed by the likelihood of unfair prejudice.” Id. at

324-25 (citing Commonwealth v. Williams, 896 A.2d 523, 539 & n.6) (Pa.

2006).

       Appellant argues that the court should have excluded evidence of his

intoxication because there was “no evidence of any impairment or

intoxication on the part of Appellant.” Appellant’s Brief at 18. Analogizing

the facts of this case to those in Rohe v. Vinson, 158 A.3d 88 (Pa. Super.

2016),8 Appellant claims that Dr. Roberts’ opinions do not form the proper

basis for the admission of evidence of Appellant’s BAC at the time of his fall.

Appellant’s Brief at 25. Appellant argues that, because Dr. Roberts formed

his opinion that Appellant was intoxicated at the time of his injury only by

calculating backwards from Appellant’s BAC at the time staff measured it at

the hospital, and did not cite any evidence of actual impairment, the
____________________________________________


8 In Rohe, this Court held that in order for BAC evidence to be admissible in
a motor vehicle negligence action to prove intoxication, there must be not
simply evidence of the actor’s alcohol consumption, but “other evidence
showing the actor’s conduct which suggests intoxication.” Rohe, 158 A.3d
at 96 (citing Ackerman v. Delcomico, 486 A.2d 410, 414 (Pa. Super.
1984)).



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potential prejudice caused by Dr. Roberts’ opinion outweighed its probative

value.9 Id. at 18, 23. Appellant avers that the trial court erred in replacing

the standard that “requires evidence of intoxication, with evidence of mere

consumption.” Id. at 22. He theorizes that the reason hospital staff asked

him whether he had consumed alcohol prior to his fall was not because he

was exhibiting signs of intoxication, but because they were going to give him

medications with contraindications with alcohol. Id. at 20, 24.

       BAC alone is inadmissible to prove intoxication.   Rohe, 158 A.3d at

96.   However, it is well-settled that evidence of an actor’s BAC combined

with competent expert testimony interpreting the BAC level is admissible to

show the actor’s impairment as a result of the BAC level.     Coughlin, 170

A.3d at 409.

       In Coughlin, a personal injury action against a motorist who killed a

pedestrian who was crossing the street, our Supreme Court considered

whether the defendant is required to present independent corroborating

evidence of the decedent’s intoxication, in addition to expert testimony

interpreting the decedent’s BAC, before the BAC evidence was admissible.

Id. at 400. The Court held that, as noted supra, “the admissibility of BAC

evidence is within the trial court’s discretion based upon [the] general rules

____________________________________________


9  In support, Appellant emphasizes the videotaped deposition testimony
from his witness, Cherie Jacobs, that Appellant was not intoxicated or
impaired at the time of his fall. See, e.g., Jacobs Deposition, 9/7/16, at 45-
47.



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governing the admissibility of evidence.”        Id. at 400-01.     Given that

standard, the Coughlin Court concluded that, in the context of a personal

injury suit against the operator of a motor vehicle, where “an expert testifies

thoroughly regarding the effects that a given BAC has on an individual’s

behavior and mental processes, and where that expert specifically opines

that a particular BAC would render a pedestrian unfit to cross the street, we

find the probative value of such evidence outweighs its potential for unfair

prejudice.” Id. at 409.

       We recognize that the facts in Coughlin are distinguishable from the

instant facts.       However, the Coughlin framework for analyzing the

admissibility of the evidence of Appellant’s intoxication applies here.

       In this case, Appellee raised the defense of Appellant’s comparative

negligence.     In support of this defense, Dr. Roberts first calculated that,

based on Appellant’s BAC at the time hospital staff tested his blood about

2½ hours after the fall, Appellant’s BAC at the time of the fall was .106%-

.121%.10 This is approximately 1.5 times the level legally defining alcohol

intoxication in Pennsylvania.11

____________________________________________


10 Based on his calculations, Dr. Roberts opined that Appellant’s alcohol level
at the time of his fall was “conservatively equivalent to approximately 5-8
alcoholic drinks.” Report, 1/28/16, at 10. Dr. Roberts, thus, opined that
Appellant’s testimony that he barely drank from one can of beer “is absurd.”
Id. at 8-10.
11 An individual in Pennsylvania is considered legally intoxicated with a BAC
of 0.08%.



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      In his expert report, Dr. Roberts then addressed the physical and

mental   impairment   associated   with    alcohol   intoxication,   noting   that

“negotiating hoses on the steps requires significant mental and physical

prowess.” Report, 1/28/16, at 10. Dr. Roberts explained that “[e]thanol is

a potent central nervous system depressant and it acts like a general

anesthetic. . . . Ethanol impairs motor, physical, and mental skills and

competency by its direct effect on the brain, rendering information

acquisition and information processing slower and less efficient. Ethanol in

the blood directly impairs [ ] one’s ability to make rational judgments, avoid

obvious dangers, or perform motor, visual, and mental tasks in their normal

manner.” Id. at 9.

      Dr. Roberts concluded that, in his professional medical opinion,

Appellant’s estimated BAC of 0.106%-0.121% at the time of his fall “would

have rendered him more likely to engage in dangerous and reckless

activities; be unaware or not concerned with obvious potential danger; and

significantly impair him both mentally and physically.”         Id. at 13.     In

particular, Dr. Roberts explained that Appellant:

      would have had diminished capacity to exercise basic common
      sense, would have experienced impaired physical or mental
      ability to avoid being entangled in a hose, and more likely would
      have been stumbling, having trouble seeing, and mentally
      unaware or unconcerned of possible danger from trying to
      negotiate a hose on steps.          In short, he was significantly
      impaired by alcohol. This altered mental and physical state was
      contributory to, if not totally responsible for, his fall.

Id. at 13-14.

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       As noted by the trial court in its February 2, 2017 Memorandum and

Order, Dr. Roberts testified to the findings and opinions noted above. See

Opinion, 2/2/17, at 3-4.        Following our review, we conclude that the trial

court did not abuse its discretion in admitting Dr. Roberts’ expert report and

testimony as evidence of the effect that Appellant’s intoxication had on his

motor, physical, and mental skills at the time of his fall. Therefore, pursuant

to the analysis articulated in Coughlin, we conclude that the probative value

of Dr. Roberts’ specific opinion testimony about the impairment caused by

Appellant’s elevated BAC outweighed its potential prejudice. Thus, the trial

court properly denied Appellant’s Motion in Limine and Motion for a New

Trial.12

       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2018



____________________________________________


12 We further observe that, even if the trial court erroneously admitted
evidence of Appellant’s intoxication, its admission was harmless because the
jury explicitly found no negligence on the part of Appellee.



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