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Gustavson v. Gaynor

Decided: December 16, 1985.

ANDREW J. GUSTAVSON AND JOANN MARIE GUSTAVSON, PLAINTIFFS-APPELLEES,
v.
ANDREW C. GAYNOR AND SANDRA R. GAYNOR, DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Essex County.

Brody and Gaynor.

Per Curiam

This appeal raises the issue of the relevancy of a driver's consumption of alcoholic beverage several hours prior to an accident in the absence of proof that his driving ability had thereby been affected. While there have been allusions to the inadmissibility of such evidence, our appellate courts have not as yet squarely dealt with the issue.

At approximately 1:30 a.m. on June 26, 1982 plaintiff, Andrew J. Gustavson, was proceeding in his automobile in a northerly direction on Pleasant Valley Way, West Orange, and defendant, Andrew C. Gaynor, was driving his vehicle in a southerly direction on that street. As the cars attempted to pass each other, they collided, with the point of impact being the left front fenders of both vehicles. Each driver claimed that the other had veered into the opposite lane thereby causing

the collision. The investigating officer's testimony regarding the physical evidence observed by him at the scene, while tending to support defendant's version, was not without some qualification as to the trustworthiness of that evidence. However, he unequivocally indicated that his observations of both drivers led him to conclude that the accident was not in any way causally related to the consumption of alcoholic beverages.

Some five to six hours before the accident, defendant had met with several of his friends in a park and consumed two or three bottles of beer. Subsequently, and shortly before the accident, he had stopped at a nightclub to visit a friend who was playing in the band. However, he denied drinking any alcoholic beverages while at the club, or at any other time during the course of the evening after leaving the park, and there was no evidence to the contrary. Prior to defendant's testimony, an application was made to the trial court to bar any reference to the consumption of alcoholic beverages by defendant. It was argued that such evidence was not relevant, but if so, it should be excluded under Evid. R. 4 as its probative value was substantially outweighed by the potential for undue prejudice created by its admission. While ruling that he would not allow any suggestion that defendant was drunk or couldn't drive because of having had a couple of beers, the trial judge nevertheless denied the application, considering that such evidence, although not admissible to show negligent operation of the car, was relevant as it pertained to the prior activities of a party to an automobile accident and provided a continuity in the narrative leading to the point of the actual collision. In accord with this ruling, and over the continued objection of defendants' counsel, plaintiffs' attorney was permitted to pursue extended cross-examination concerning the consumption of beer in the park and defendant's admission to a club where liquor was served despite his being only 17 years of age at the time, and to highlight this testimony in the summation. This emphasis upon defendant's prior conduct appears to have been an attempt to suggest that drinking had affected his driving ability. The allowance of

such testimony together with the summation comments conceivably permitted the jury to consider that defendant was under the influence of alcohol at the time of the accident and that this condition caused him to veer into plaintiff's lane. Both drivers were found negligent and the jury apportioned the negligence 55% to defendant and 45% to plaintiff.

Whether the asserted relevance of such evidence is founded upon narrative completeness or negligent operation of the vehicle, we are satisfied the admission of the challenged testimony constituted reversible error. Thus, a new trial is required.

Clearly, evidence of intoxication is relevant to the issue of negligent driving. Maladowitz v. Coley, 47 N.J. 55 (1966); Roether v. Pearson, 36 N.J. Super. 465 (App.Div.1955); see also Damchug v. Public Serv. R. Co., 5 N.J.Misc. 365, 136 A. 604 (Sup.Ct.1927). While Maladowitz only dealt with the admissibility of evidence bearing upon an issue not set forth in the pretrial order, in the course of the court's opinion it stated that "[a] reference to liquor with respect to a driver is relevant only if it is asserted that it affected his ability to drive." 47 N.J. at 57. The Roether court, in upholding a verdict for the defendant despite his admitted guilty plea to a criminal charge of drunk driving arising out of the accident involving the plaintiff, considered that "[t]he fact that a driver of an automobile has been drinking and gives physical appearance of being under the influence of liquor and even pleads guilty to a charge of drunken driving is all proper evidence of negligence to be submitted to the jury." 36 N.J. Super. at 467. The corollary argument flowing from these pronouncements, as advanced by defendant, is that unless there is proof of intoxication the prior consumption of alcoholic beverages by a driver has no relevancy to the claimed negligent operation of the vehicle.

In those jurisdictions which have considered this question the rule followed is that evidence of prior drinking is admissible as being relevant to the issue of the driver's fitness only when there is ...


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