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Barrett v. Burnette

Court of Appeals of Georgia, Fifth Division

February 27, 2019

BARRETT et al.
v.
BURNETTE.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          RICKMAN, JUDGE.

         Following an automobile collision where Robert Barrett struck Richard Burnette's unoccupied parked car, Barrett and his wife filed a complaint for damages in tort against Burnette. The jury returned a verdict in favor of Burnette, but found that Burnette was negligent and that both Burnette and Barrett were each fifty percent at fault for the accident. Barrett contends that the trial court erred by granting Burnette's motion in limine to exclude all evidence related to Burnette's intoxication on the night of incident. For the following reasons, we reverse.

         We construe the evidence to support the jury's verdict. See Chrysler Group v. Walden, 303 Ga. 358, 359 (I) (812 S.E.2d 244) (2018). So construed, the evidence showed that on the night of July 11, 2015, Burnette was driving his car when he received a flat tire and was unable to drive any further. Burnette claimed that he pulled his car off the roadway, turned on his emergency flashers, and walked to his house in order to call for help because his cell phone was not working. Once he got back to his house, Burnette called a wrecking service. After Burnette left his car in the road, Barrett, who was driving with a friend, hit Burnette's car at approximately 50 miles an hour, in excess of the speed limit. Barrett, his friend, and an independent witness who was driving on the opposite side of the road during the accident all testified that Burnette's car was stopped in the middle of road and did not have its emergency flashers on.

         Approximately 45 minutes after he called the wrecking service, someone with the service called Burnette and informed him of the accident. Thereafter, Burnette's mom drove him back to the scene of the accident. As a result of the accident, Burnette pled guilty to a violation of OCGA § 40-6-275, which imposes a duty to remove a vehicle involved in a traffic accident.

         Barrett and his wife filed suit against Burnette alleging that he "operat[ed] his vehicle in a careless, reckless and unsafe manner, failed to keep a proper lookout, failed to keep his vehicle under control, failed to remove his vehicle in violation of OCGA § 40-6-275, was driving under the influence in violation of OCGA § 40-6-391 (A) (1-5), and failed to exercise due care." The plaintiffs sought damages for, inter alia, medical expenses, pain and suffering, attorney fees, loss of consortium, and property damage.

         Pursuant to OCGA § 33-7-11 (d) of the uninsured motorist statute, Barrett served his uninsured/underinssured ("UM") carrier, Progressive Classic Insurance Company, with a copy of the summons and complaint. Progressive answered and cross-claimed against Burnette for any potential sums that Progressive could be required to pay. Progressive elected to defend the suit in Burnette's name as allowed under OCGA § 33-7-11 (d).

         Prior to trial, Burnette moved in limine to exclude any evidence related to the citation for driving under the influence ("DUI") that he received after he went back to the scene of the accident, as well as "any evidence relating to whether . . . Burnette was legally impaired or intoxicated prior to, during or after the accident at issue." The DUI citation indicates that on the date of at the accident at 10:33 p. m. Burnette had a blood alcohol level of .123. The citation was ultimately dismissed because "the State [did] not believe it would be able to prove driving under the influence beyond a reasonable doubt."

         At the hearing on Burnette's motion in limine, Barrett did not object to the exclusion of the actual DUI citation, but he argued that testimony regarding Burnette's blood alcohol level, Barrett's observations that when Burnette came back to the accident scene he was staggering and slurring, and testimony from the Trooper about his observations of Burnette's demeanor should be admissible. Barrett argued that Burnette left his car in the middle of the road because he was too drunk to move it. Burnette claimed that he had two beers at his house while he was trying to call the wrecking service and that it had been approximately 45 minutes to an hour since he had driven the vehicle. The trial court granted the motion, excluding all evidence relating to Burnette's intoxication, finding that under OCGA § 24-4-403 the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.

         During the trial, Barrett, the friend that was in the car with him during the accident, and an independent witness who was driving on the opposite side of the road during the accident all testified that Burnette's car was stopped in the middle of Barrett's lane and did not have its emergency flashers on. Burnette was the only person to testify that he pulled his vehicle off the roadway and left it with its emergency flashers on. The jury found for Burnette but also found that he was negligent and that both Burnette and Barrett were each fifty percent at fault for the accident. The trial court entered judgment on the verdict.

         Barrett contends that the trial court erred by granting Burnette's motion in limine to exclude all evidence related Burnette's intoxication on the night of incident.

We review the trial court's decisions on the admissibility of evidence, including a denial of a motion in limine, for an abuse of discretion. And motions in limine should only be granted with great care and when there is no circumstance under which the evidence at issue could be admissible at trial. By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

         (Citation and punctuation omitted.) Central Ga. Women's Health Center v. Dean, 342 Ga.App. 127, 139 (2) (800 S.E.2d 594) (2017).

         Under OCGA § 24-4-402, "[a]ll relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules[.]" Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OCGA § 24-4-401. "Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." OCGA § 24-4-403. However, "Rule 403 is an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility." (Citation and punctuation omitted.) Dean, 342 Ga.App. at 141 (2). Additionally, this Court has held that "the question of whether a motorist's consumption of alcohol impaired his driving ...


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