Chalk One Up for the Drunk Pool-Table Guy

A billiard table contractor sent his son and the defendant to install a high-end pool table in a customer's house. The son realized he had forgotten a piece of equipment and left the defendant, who was, of course, drunk, to wait at the house. During this mere 20-minute span, the defendant got into an altercation with the customer. The defendant allegedly hit the customer in the face with a hammer, and, when the police arrived, they found the customer on top of the defendant, presumably discussing the recent Open 9 Ball Championships. The police administered a preliminary breath test (PBT) on the defendant which measured a blood alcohol content of .021.

In the inevitable civil suit, the jury ruled in favor of the defendant, and the customer appealed, claiming, in part, that the trial court had erred in excluding the results of the PBT in the civil trial and in excluding an expert toxicologist's proffered testimony about how much alcohol the defendant would have needed to consume to reach a BAC of .021.

In Santen v. Tuthill, No. 021781, 2003 WL 1903408 (Va. April 17, 2003), the supreme court noted that while Va. Code Ann. § 18.2-267(E) provides that a result of a PBT shall not be admissible in any prosecution under Va. Code § 18.2-266 or 18.2-266.1, it does not exclude such evidence from all criminal or civil actions.

The supreme court, though, held that the PBT and the toxicologist's testimony were not admissible in the civil case because there was not a sufficient factual foundation for the alleged accuracy of the PBT. Specifically, according to the proffer of the toxicologist's testimony, the result of the PBT was accurate "assuming the machine was regularly calibrated." The court stated that there was no evidence that the PBT machine used had been regularly calibrated.

Klutz Cannot Blame City for his Slip and Fall

In Harrell v. City of Norfolk, No. 021419, 2003 WL 1903258 (Va. April 17, 2003), the plaintiff was walking on a crosswalk at the intersection of Ocean Avenue and Cape View Avenue in the city of Norfolk when he slipped and fell on the crosswalk. The plaintiff sued the city, alleging that the city had failed to safely maintain the crosswalk or had failed to warn pedestrians of any unsafe conditions.

The circuit court dismissed the plaintiff's motion for judgment because the crosswalk was a "traffic regulatory device" that was part of the city's governmental, not proprietary, functions, and the city was, therefore, immune from liability.

On appeal, the supreme court affirmed. The supreme court acknowledged City of Norfolk v. Hall, 175 Va. 545, 9 S.E.2d 356 (1940), in which the court stated that a city may be liable for injuries sustained as a result of a city's failure to keep streets in reasonably safe condition. However, the court also noted Transportation, Inc. v. City of Falls Church, 219 Va. 1004, 254 S.E.2d 62 (1979), holding that not every activity related to street maintenance is proprietary and that traffic regulation, such as the maintenance of a stoplight, is a governmental function.

The court then distinguished a slippery crosswalk from potholes, depressions, and dips in the road and held that a crosswalk was a traffic regulatory device maintained pursuant to a governmental function, so the city was immune from liability.