Evidence of a plaintiff’s blood alcohol concentration may be excluded where no direct evidence of the effects of intoxication is available, the Supreme Court held in Gerlach v. Cove Apartments, LLC, No. 97325-3 (Aug. 27, 2020) overturning the decision of the Court of Appeals.
In Gerlach, a woman who had been drinking with friends walked back with her boyfriend to his apartment. Before entering, he stopped to smoke a cigarette. He heard a noise, then turned and saw his girlfriend fall headfirst to the ground. A piece of the rotted balcony railing fell beside her. She was taken to the hospital with serious injuries. A blood test administered less than an hour after the accident revealed that her blood alcohol concentration (BAC) was .219, nearly three times the legal limit. No one had seen what happened immediately before she fell; no one witnessed her fall. She herself had no recollection of events.
She sued the apartment owner for negligence. Her theory was that the apartment owner had negligently maintained the balcony railing, causing it be so severely rotted that it gave way when she leaned against it.
The apartment owner’s theory was that her level of impairment was so high that instead of going into the building and leaning against the balcony, she had tried to scale the building and had fallen when she tried to climb over the railing. It asserted the voluntary intoxication defense of RCW 5.40.060(1). This statute provides that a plaintiff whose intoxication caused the injury could not recover on a claim if she was more than 50 percent at fault.
The apartment owner sought to introduce medical testimony regarding the ways in which a high BAC would have affected a person’s judgment, physical and mental abilities, and conduct. He was prepared to testify that the extent of her intoxication contributed to her injuries.
To avoid the prejudicial effects of the high BAC, the plaintiff admitted she was intoxicated and moved in limine to exclude the BAC number and the apartment owner’s medical expert. The trial court granted the motion in limine, reasoning that (a) her admission was sufficient to satisfy the threshold element of the voluntary intoxication defense; and (b) the evidence of her high BAC was more prejudicial than probative. At trial, the jury determined that the apartment owner was 93 percent at fault, and that the plaintiff was 7 percent at fault.
The apartment owner appealed, arguing the trial court abused its discretion when it excluded the BAC evidence and expert testimony. As summarized in our Spring 2019 issue, the Court of Appeals reversed the trial court, holding that the evidence was both relevant and not unduly prejudicial.
As to relevance, the Court of Appeals reasoned that if the only thing the apartment owner had to prove for its voluntary intoxication defense was that the plaintiff was intoxicated, her admission would have rendered irrelevant her BAC evidence. However, the defense also requires proof of proximate cause and percentage of fault. The high BAC numbers could assist a jury in determining both (a) whether, and to what extent, her intoxication was a proximate cause of her injuries; and (b) her percentage of fault. Excluding the evidence meant that the apartment owner had no chance to show that the plaintiff was predominantly liable for the accident.
As to prejudice, the Court of Appeals recognized that the high BAC could cause emotional reactions among the jurors, but disagreed that the potential prejudice outweighed the probative value. It reversed the trial court and remanded for a new trial. The plaintiff sought review in the Washington Supreme Court.
The Supreme Court accepted review and reversed the Court of Appeals’ decision. A trial court has broad discretion to make evidentiary rulings, which will be undisturbed absent abuse of discretion. Evidence can be excluded as unfairly prejudicial, even if relevant, when it is likely to stimulate an emotional reaction rather than a rational decision. Here, the trial court properly excluded the BAC and expert evidence because the evidence was “only minimally probative” and the relative risk of prejudice was “unacceptably high.”
Additionally, the Court ruled that BAC alone is not relevant to proximate cause and share of fault, explaining that these elements depend upon a plaintiff’s actions, not her level of intoxication.
Finally, the Court pointed out that the expert testimony would have been speculative. Although the expert could discuss the general effects of intoxication on persons with attributes similar to the plaintiff’s, he had no evidence of the actual effects on the plaintiff. He could not provide testimony that would help the jury determine whether her actions caused her injuries or increased her degree of fault.
Three justices dissented on this issue, calling the high BAC the most probative piece of evidence.