THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Unpublished Opinion No. 2004-UP-550
Heard September 15, 2004 – Filed October 27, 2004

PER CURIAM: This action arises from a traffic accident involving John David Lee (Lee) and Robert Allen Bunch. Lee, his wife Kathleen Newman Lee (Mrs. Lee), and Bunch appeal, challenging various rulings of the trial court. We reverse and remand for a new trial.

The traffic accident between Lee and Bunch occurred on September 19, 1997, at approximately 10:30 p.m. While riding his motorcycle on Old Dunbar Road, Lee collided with a Cadillac El Dorado driven by Bunch. Lee’s motorcycle hit the driver’s side of the Cadillac, which was situated perpendicularly across the road. Bunch was uninjured by the accident and exited the vehicle through the passenger-side door. Lee, however, was seriously injured.

At trial, the parties presented contradictory accounts of how the accident happened. Bunch testified that on the evening of the accident, his then-fiancée, Joanne Hankinson, called him at his sister’s house and asked him to bring her dinner and a tube of lip-stick to the bar where she worked, Johnny B’s. Bunch borrowed his sister’s Cadillac, purchased the lipstick at a grocery store near the bar, and proceeded down Old Dunbar Road to the bar. He stated he was attempting to make a wide left turn into the parking lot of Johnny B’s when Lee’s motorcycle collided with the car. In his deposition, Bunch testified that it was still daylight when the accident occurred. At trial, he vacillated on the time from when he borrowed the Cadillac until the accident occurred.

Lee testified that he had left a family birthday celebration at Murray’s, a bar and grill, shortly before the accident occurred. He stated that he remembered seeing a moving blur shortly before everything went black but he did not remember the impact at all. Gregory Jones and Chong Abernathy, who witnessed the accident, testified about what they observed that night. Abernathy testified that when she and Jones left the bar Abernathy owned between 7:00 and 7:30 that evening to go to dinner, Bunch’s Cadillac was parked on the shoulder of the road in front of a mailbox. When they returned from dinner several hours later, the Cadillac was still parked there. Abernathy and Jones testified the Cadillac slowly pulled into the road. Abernathy stated it appeared that the driver of the Cadillac was attempting a U-turn when the accident happened.

An ambulance arrived at approximately 10:45 p.m. Though slightly disoriented, Mr. Lee was conscious and related pain he felt as the emergency medical technicians (E.M.T.’s) splinted his arms and legs. While the E.M.T.’s were tending to Mr. Lee’s injuries, Trooper Paul Allen Nelson of the South Carolina Highway Patrol arrived on the scene and began investigating the accident by observing the condition of the vehicles, their relative positions on the road, and the debris caused by the impact. Trooper Nelson later met with Lee after he had been taken by ambulance to the emergency room. During their conversation at the hospital, Trooper Nelson smelled alcohol on Lee and asked whether he had been drinking prior to the accident. Lee responded in the affirmative. Trooper Nelson arranged for a sample of Lee’s blood to be taken by hospital personnel and tested by SLED for alcohol content. The test indicated Lee had a blood alcohol level of 0.036%.

Lee had numerous broken bones, a head injury, and severe injury to his groin area. He spent ten days in the hospital and several months recuperating while he and his family lived with his parents. Because of his injuries, he was not able to return to his job performing home remodeling and interior repair work with his father. Instead, he became a licensed cosmetologist and works in his mother’s salon.

On March 28, 2000, Lee and his wife, Kathleen Newman Lee, brought suit against Bunch [1] in the Orangeburg County Court of Common Pleas, alleging Bunch negligently pulled out from a parking space into the roadway, thereby causing the accident and Lee’s resulting injuries. Mrs. Lee sought to recover for loss of consortium. While Bunch denied all allegations of negligence in his answer, the pleading contained no assertion of comparative negligence as an affirmative defense.

Prior to trial, the Lees moved to exclude any evidence of Lee’s consumption of alcohol before the accident. The trial court denied the motion, ruling testimony of alcohol consumption would be probative as to the determination of liability. At trial, after Lee testified, Bunch moved to amend his answer to include the affirmative defense of comparative negligence. In support of the motion, Bunch’s trial counsel noted that Lee testified that he had consumed alcohol and testimony of other witnesses corroborated the fact. The trial court granted the motion.

After deliberating, the jury returned a verdict of comparative negligence, assigning 70% of the fault to Lee and 30% to Bunch. Having found Lee more than 50% at fault, the jury awarded no damages to Lee. The jury also returned a defense verdict on Mrs. Lee’s claim for loss of consortium. Counsel for the Lees argued the verdicts were inconsistent in that Mrs. Lee was entitled to recover damages on account of the jury’s finding that Bunch was partially negligent on Lee’s claim. The judge agreed and ordered the jury to resume deliberations with instructions to award some amount of damages to Mrs. Lee. After deliberating again, the jury returned with a verdict for Mrs. Lee in the amount of $9,000.00.

In a post-trial motions hearing, Lee moved for judgment notwithstanding the verdict or for a new trial. Mrs. Lee moved for a new trial nisi additur or a new trial absolute. Bunch moved for reinstatement of the original defense verdict against Mrs. Lee. By order filed September 24, 2002, the trial court denied each of the post-trial motions. Bunch and the Lees appealed.

The Lees argue the trial court erred in denying their motion to exclude evidence of Mr. Lee’s alcohol consumption before the accident. We agree.

A trial court’s ruling on admission of evidence will not be disturbed on appeal absent abuse of discretion amounting to error of law. Hoeffner v. The Citadel, 311 S.C. 361, 365, 429 S.E.2d 190, 192 (1993). “Evidence is relevant and admissible if it tends to establish or make more or less probable some matter in issue.” Id. at 365, 429 S.E.2d at 192. “However, otherwise relevant evidence may be excluded where its probative value is ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .’” Kennedy v. Griffin, 358 S.C. 122, 127, 595 S.E.2d 248, 250 (Ct. App. 2004) (quoting Rule 403, SCRE). “Unfair prejudice means an undue tendency to suggest a decision on an improper basis.” Id. (quoting State v. Owens, 346 S.C. 637, 666, 552 S.E.2d 745, 760 (2001).

In Kennedy, this court held the trial court had abused its discretion in allowing the admission into evidence of toxicology results showing the presence of marijuana in the plaintiff motorist’s system, finding the unfair prejudice outweighed the probative value of the evidence. The court found the plaintiff’s mere delay in applying his brakes did not necessarily suggest that he was driving under an impairment. Thus the court concluded, “Under these circumstances, evidence of the mere presence of marijuana, without further indication of impairment, could mislead the jury. The admission of this evidence was more prejudicial than probative because there was no correlation between the marijuana and the accident.” Kennedy, 358 S.C. at 128, 595 S.E.2d at 251.

The Lees argue that probative value of the evidence of alcohol consumption was outweighed by its prejudicial effect because under the driving under the influence statute, Lee, with blood alcohol level of 0.036%, would be conclusively presumed to not be under the influence of alcohol. [2] Even the higher alcohol levels Bunch’s expert witnesses calculated Lee may have had when the accident occurred [3] would not have created an inference that Lee was under the influence of alcohol under the statute in effect at the time of the accident. [4]

There is no evidence that Lee showed any signs of impairment. Lee’s mother testified that when her son told her goodbye at Murray’s, he appeared fine and did not appear intoxicated. There is also no evidence in the record that Lee was driving erratically before the accident. Lee’s sister testified that when Lee was driving away from the restaurant, there was nothing unusual in his driving. Although there was some testimony the accident occurred slightly left of the centerline, there is no evidence that Lee was driving across the line before the accident.

Bunch’s expert witnesses both testified to the general effects of the consumption of the amount of alcohol would have on a person of Lee’s size. Dr. Eagerton testified that the amount of alcohol he calculated Lee had consumed would have impaired a person’s judgment and ability to multi-task, making his ability to drive impaired. Dr. Merlin testified that a person who had consumed that much alcohol would have diminished functioning, such as poor judgment, inability to do some fine motor skills, and the significantly diminished ability to multi-task. However, neither of Bunch’s experts testified to a connection between Lee’s alcohol consumption and the cause of the accident. They did not testify that absent the alcohol consumption, Lee would have been able to avoid the accident, which happened in “maybe a couple of seconds, more or less, a split second” according to Chong Abernathy, who witnessed the accident. As she explained, “I don’t think the motorcycle had [any] time to avoid any of the the –no matter which angle, he was going to hit the Cadillac.”

Other than the experts’ generalizations, there is simply no evidence that Lee was impaired. Moreover, there is no evidence at all that absent the consumption of alcohol, it was “less probable” that the accident would have occurred.

While the probative value of the alcohol consumption is at best slight, the prejudicial effect of the admission of the evidence is significant. Bunch’s attorney made Lee’s alcohol consumption the theme of his opening statement, emphasizing repeatedly that this was a case about drinking and driving. We find the prejudicial effect of the admission of the evidence regarding Lee’s alcohol consumption greatly outweighed its probative value. Thus, we hold the trial court abused its discretion in allowing the admission of the evidence concerning Lee’s alcohol consumption.

As we hold the trial court erred in admitting the evidence of Lee’s alcohol consumption, we need not address the parties’ remaining issues. Accordingly, the jury’s verdict is reversed and the case remanded for a new trial on the Lees’ claims.

[1] The Lees also named Mr. Bunch’s sister, Catherine Bunch Graham, who owned the Cadillac, as a defendant. She was dismissed from the suit prior to trial and is not a party to this appeal.

[2] South Carolina Code Annotated Section 56-5-2950(b)(1) (Supp. 2003), provides: If the alcohol concentration was at that time five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol.

[3] David Eagerton, the chief toxicologist for the South Carolina Law Enforcement Division (SLED) testified that he calculated Lee had an approximate alcohol level of 0.066% at the time of the accident because the sample was taken at least two hours after the accident, assuming Lee was in the elimination stage then. Similarly, Dr. Stephen Merlin, the director of the chemical dependency unit at Palmetto Richland Springs Hospital, testified that according to his calculations, Lee’s blood alcohol level ranged from 0.066% to 0.096% between the time of the accident and the time the sample was taken.

[4] The statute in effect at the time of the accident provided:

If the [alcohol] concentration was at that time in excess of five one-hundredths of one percent, that fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other evidence in determining guilt or innocence of the person.

S.C. Code Ann. § 56-5-2950 (Supp. 2002). This section was amended in 2003 to provide that an alcohol level of eight one-hundredths or more gives rise to an inference of intoxication. Act No. 61, 2003 Acts 688.