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Supreme Court No. 97-535-Appeal. (PC 93-277) Robert Kay v. Edward Menard. : : :

Present: Weisberger, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ. OPINION Bourcier, Justice. Ten years ago, Robert Kay tumbled down an elevator shaft from the fourth floor elevator opening to the basement of the Mongeon Building in the City of Woonsocket. He was seriously injured. He sued the owner of the building, Edward Menard, accusing Menard of negligence. A Superior Court trial jury awarded him $275,000 for his injuries and damages. Menard, in this appeal, challenges the final judgment entered in the case. Facts/Case Travel Robert Kay (Robert or the plaintiff) and Susan Bergeron (Susan), his girlfriend, lived together in a fourth-floor apartment in the five-story Mongeon Building. The building contained several retail businesses, as well as residential apartments. Edward Menard (Menard or the defendant), lived in a basement apartment and operated a retail business on the second floor of his building. The building contained a single manually operated elevator. For a tenant to use the elevator, he or she first would summon the elevator by pressing a button next to the elevator door located in the

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00457B hallway on each floor. That door could not be opened until the elevator had reached the particular floor from which the button had been pressed. When the elevator reached that floor, a mechanical interlock, designed to keep all the doors locked, then would disengage the door-locking mechanism, permitting the particular door to be opened. The interlock door system was designed to prevent any door from being opened when no elevator was present at a particular floor in order to prevent anyone from falling into the elevator shaft.1 Once the hallway elevator door w disengaged, the door could then be as opened from the hallway and the person intending to use the elevator then would reach in and lift a wire inner-mesh gate attached to the elevator in order to enter the elevator. He or she, after entering, then would have to lower the wire mesh gate until it touched the floor of the elevator; otherwise, the elevator would not operate. Every evening, t e defendant, Menard, who lived in a basement apartment, typically would h disable the elevator at his basement floor level until the following morning, by raising the inner-mesh gate a few inches above the elevator's floor. This prevented the elevator from being operated and provided some measure of security for his tenants. When a tenant, during evening and late hours, wished to use the elevator, he or she would press the button near the elevator door in the hallway where he or she was located. A loud buzzer then would sound in the defendant's basement apartment, and he would respond by lowering the elevator's inner-mesh gate to the elevator's floor, thereby setting the elevator in motion to respond to the floor from which the button had been pressed. Having explained the workings
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Professor Marc H. Richman, a noted expert and scholar in the field of engineering, testifying for the plaintiff, noted the purpose of the mechanical interlock. He described it as follows: "[N]ot until the elevator is at the right level can you * * * open the doors up. * * * There is a mechanical interlock that keeps that door latched in place. Only when the elevator has come to your floor level can you twist the handle, the knob, and pull the door open because when the elevator comes there it releases the latch holding those doors shut. Now you can open the doors up, lift the gate up and go into the elevator." -2-

00457B of the Mongeon Building's elevator, we turn now to the events that generated the instant litigation and the appeal now before us. Sometime just before April 11, 1990, Robert proposed marriage to Susan, his girlfriend. She accepted his proposal. Later, on April 11, at about 6 p.m., they decided to celebrate their recent betrothal and went out to dinner at a restaurant across the street from the Mongeon Building. They dined and drank and, when leaving, ordered a take-out dinner for Menard, who they knew would be in his apartment. They returned to the Mongeon Building, and entered by a third-floor entrance which was accessible from the street sidewalk because the building was situated on a hillside. One of them pressed the elevator button to summon the elevator to the third floor. When the elevator reached that floor, they used it to go down to Menard's basement apartment and to give him the take-out dinner they had purchased for him. They stayed with Menard for a short time, and then left to continue to celebrate their betrothal at the Hillside Tavern. Celebrate they did, for several hours, until Robert, with bubbling enthusiasm, toasted his future bride by telling Susan that marriage would be like a ball and chain for him. That brought to a close the celebration, and Susan left. Robert wobbled out after her, seeking to apologize. Susan forgave him, and they returned to the Mongeon Building at about 10:30 p.m. When they did, they entered again through the third-floor side entrance and then walked up the stairway to their fourth-floor apartment. Robert told Susan that he was going to go down to visit Menard to see if all was well with him, and to inquire about whether he enjoyed the take-out dinner. He told Susan that first he was going into the apartment to get a sweater. As he was walking towards the apartment, he heard Susan press the elevator button and heard the buzzer sound for the elevator.

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00457B When Robert came out of the apartment, he walked to the elevator, assumed the elevator had reached his floor, opened the elevator door and leaned down to lift the wire mesh gate. While doing that, he turned his head to look for Susan and said, "are you coming." There was no elevator waiting for him, and Robert's momentum in leaning down to pick up the wire mesh gate carried him into the open elevator shaft. He fell four floors down onto the top of the elevator that was still at the basement level. As would be expected, Robert suffered serious multiple injuries, and he was taken to Landmark Hospital in Woonsocket. At the hospital, his blood alcohol content (BAC) was recorded at .23 percent. He later was transferred to the Rhode Island Hospital trauma unit. There, a second blood test revealed that his BAC level had risen to .25 percent. Without intending to be facetious, Robert, although dead drunk, fortunately was still very much alive. In January 1993, Robert sued Menard, asserting in his Superior Court civil complaint that Menard had been negligent in failing to maintain his building elevator and door in a safe condition. After trial, a Superior Court jury returned a verdict in favor of Robert and awarded him damages of $550,000. However, because the jury found Robert to have been comparatively negligent, it assessed his negligence at fifty percent and then reduced his award to $275,000, as required by the trial justice's instruction. Robert's motion for a new trial or additur, and Menard's motion for a new trial all were denied by the trial justice. Menard timely appealed.2 In his appeal, Menard alleges that the trial justice erred in: (1) permitting introduction of evidence of his intoxication; (2) failing to instruct the jury on the doctrines of assumption of the risk, and "looking but failing to see;" (3) failing to instruct the jury that passengers are not prohibited from using
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See Kay v. Menard, 727 A.2d 665 (R.I. 1999) (per curiam). -4-

00457B freight elevators; (4) failing to give a curative instruction after the plaintiff's counsel suggested in his closing argument that the defendant was entitled to rebuttal; (5) giving inappropriate instructions with respect to life and work life expectancy tables; (6) failing to instruct the jury to calculate the present-day value of any damage award; (7) instructing the jury to consider unproven future medical expenses; and, (8) permitting the jury to consider unproven scarring on the plaintiff. Additional facts will be presented as needed in the course of reviewing those contentions. 1. Evidence of Intoxication In this civil action for damages, the defendant's fifth special defense and the pretrial discovery procedures thereafter undertaken by both parties made clear to the trial justice that both the plaintiff and the defendant had been intoxicated at the time of the plaintiff's near fatal plunge into the elevator shaft. Robert's blood alcohol content, when tested at the hospital where he was taken within minutes of his fall, was .23 percent. It rose shortly thereafter to .25 percent. He was intoxicated. Menard had consumed some twelve to fourteen glasses of Scotch on that day and also was intoxicated, but unlike his friend Robert, he was feeling no pain. Confronted with that information from the Court file, and as well by motions in limine filed by both the plaintiff and the defendant seeking to have the trial jury know only of the other's intoxication and not of his own, the trial justice properly responded to the respective motions by conducting a Handy v. Geary hearing.3 At the conclusion of that hearing, the trial justice determined that he would permit evidence of intoxication on the part of both parties to be introduced at the trial. He additionally permitted the

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See Handy v. Geary, 105 R.I. 419, 431, 252 A.2d 435, 441-42 (1969). -5-

00457B plaintiff to introduce evidence of the defendant's alcohol abuse during a short period, extending over several months from late 1989 to the date of plaintiff's fall on April 11, 1990. The trial justice referred to that time-period limitation as being a "narrow corridor," in which the plaintiff might reasonably explore whether the defendant's daily periods of intoxication proximately resulted in his failure to correct, repair or replace the mechanical interlock safety feature in the hallway elevator entrance door. The trial justice noted: "the rate and regularity of his drinking during this period of time is significant, and a jury could find it to be related to his actions, particularly by his own admission that he was shown by Miss Bergeron that the elevator door could be opened without the elevator car being present. There is no testimony at all that he did anything after being shown that on two occasions. Thus, his significant alcohol consumption could relate to his actions as it impacts on whether he exercised due care in these circumstances." The defendant here on appeal contends that the trial justice erred in permitting the plaintiff to introduce evidence of the defendant's intoxication both at the time of, and for the delineated period of time prior to, the plaintiff's fall and injuries. We disagree with that contention. Both the plaintiff and Susan, who formerly worked as a secretary to Menard, testified as to unusual amounts of liquor that Menard had been drinking in the several months preceding the day of the incident in question. They each had occasion to see Menard on a daily basis and they testified that, over the course of Menard's waking hours, he would drink constantly, consuming at least two drinks per hour and consuming approximately fourteen glasses of Scotch and water, mostly Scotch. They each testified that they would have to help Menard to the bathroom, and that he would have to reach for wall and counter assistance.

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00457B Menard attempted to contradict what the plaintiff and Susan had said of his drinking habits by admitting that from at least February 1990, and up to the time of the plaintiff's fall, he only drank up to ten glasses of Scotch every day. He also added, "I drank beer, I drank scotch, I drank Vodka. Pick a name and chances are I drank it." In light of that evidence concerning the extent and nature of the defendant's drinking habit, we are satisfied that the trial justice did not err or abuse his discretion in permitting the plaintiff to explore that habit at trial. It was important for the jury to determine whether the defendant's almost constant state of inebriation was the real cause for his ignoring and/or inaction in failing to correct the dangerous mechanical interlock defect in the fourth-floor hallway door leading to the elevator in his building. Certainly the time-period coincidence between when the complaints about the doorlock were being made and when the defendant was inebriated on a daily basis, was relevant for the jury to hear and consider. The jury was required to apportion fault of the parties for purposes of comparative

negligence, and because that required the jury to consider each party's total culpable conduct with respect to the cause and happening of the plaintiff's tumble into the open elevator shaft, the evidence concerning each party's intoxication, in particular, on the day of the plaintiff's fall, was both relevant and material, and its relevance certainly outweighed any prejudice the defendant now contends resulted. Peters v. Gagne, 98 R.I. 100, 199 A.2d 909 (1964), relied upon by the defendant to support his prejudicial error contention, concerned a civil action for negligence and damages stemming from a plaintiff's fall at 10:30 p.m. in a hole that had been excavated on her property earlier that day. This Court concluded that admission of evidence that the plaintiff had consumed "one old fashioned" four hours earlier, was "clearly prejudicial" to her, and a defendant's verdict was reversed and a new trial was ordered. Id. at 106-07, 199 A.2d at 912-13. This Court was quick to point out that proof of -7-

00457B intoxication could certainly be relevant in a negligence case, "`while the mere fact of drinking intoxicating liquor'" would be "unfairly prejudicial" and not admissible. Id. at 110, 199 A.2d at 914 (Roberts J., concurring). In his concurrence, Justice Roberts noted that "[w]here intoxication is put into issue by an allegation that it constituted an antecedent act of negligence upon which liability is predicated or that it created a condition indicating improbability of a capacity to exercise due care, such evidence of the consumption of an alcoholic beverage may have such probative force on that issue as to warrant its admission into evidence." Id. at 108, 199 A.2d at 913-14. The determination that evidence of intoxication is relevant in a negligence case is in accord with the case holdings in a majority of the other jurisdictions and persuades us that the defendant's claim of error concerning the admission of evidence of defendant's intoxication is without merit. The facts in the case now before us indicate that by the defendant's fifth special defense, the extended discovery requests by both parties, as well as the motions in limine filed by both parties, intoxication on the part of both parties had been put in issue. Thus, when, as here, the comparative negligence of each party had been placed in issue, evidence concerning the extent to which each party's ability to act as a reasonable prudent person under the circumstances existing at the time of the plaintiff's near fatal plunge into the open elevator shaft was both relevant and material. The essential consideration before the trial justice during the Handy hearing, at which each party sought to exclude evidence of his own intoxication, but to present evidence of the other's intoxication, was whether in a comparative negligence case setting, one party should be permitted to shield his total acts of fault from the jury, while exposing all the other party's blameworthy conduct. See Amend v. Bell, 570 P.2d 138, 141 (Wash. 1977).

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00457B Comparative negligence properly refers only to a comparison of the fault of the plaintiff with that of the defendant and does not necessarily result in a simple division of damages; instead, it results in a reduction of the recoverable damages reduced in proportion to the total fault of the plaintiff as compared with the total fault of the defendant. See W. Prosser, Comparative Negligence, 51

Mich.L.Rev. 465, 465 n.2 & 482 (1953). While voluntary intoxication is not negligence per se, neither does it excuse one's negligence in failing to act as a reasonable and prudent person under the circumstances. See 57A Am. Jur. 2d Negligence

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