This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Frank D. Cole,



Metropolitan Council, et al.,


Filed November 4, 1997


Randall, Judge

Hennepin County District Court

File No. 9410242

Melvin Ogurak, Mindi M. Vervaecke, Ogurak Law Offices, P.A., Suite 810, 330 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Eric J. Magnuson, Jan M. Gunderson, Jennifer A. Kraft, Rider, Bennett, Egan, & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.



Appellant argues the district court erred when it admitted evidence of his alcohol consumption on the evening of the accident; allowed the reporting police officer to testify to statements made to him by a witness at the scene of the accident; and allowed evidence that a portion of his medical bills were paid by insurance. We affirm.


Appellant Frank D. Cole brought a negligence suit against respondents Metropolitan Council Transit Operations (MCTO) and Aron H. Miller for injuries he received on February 6, 1996, when he was run over by a bus owned by MCTO and operated by Miller. As Miller's bus was stopped at a red light, Cole slipped on the ice and snow on the curb and fell underneath the rear of the bus. When Miller pulled away from the curb, the bus ran over Cole, fracturing his left leg.

Prior to trial, the court ruled on a motion in limine that it would admit evidence of Cole's alcohol consumption on the night of the accident and related toxicology analysis. This evidence revealed that Cole had a blood alcohol concentration between .15 and .16 at the time of the accident. The case was tried before a jury in Hennepin County District Court. The jury returned a special verdict, finding that Cole was negligent and that his negligence was the direct cause of the accident. The jury found that Miller was not negligent. As instructed, the jury answered the damage questions, but did not award Cole any damages for past medical expenses. The jury found Cole's damages to be $12,000 for future wage loss and $10,000 for pain and emotional distress.

The district court denied Cole's motion for a new trial and Cole now appeals.


Cole claims that the district court committed reversible error when it admitted evidence of his consumption of alcohol on the night of the accident, arguing that the prejudicial effect of the evidence outweighed its probative value. We disagree.

The party complaining of an erroneous evidentiary ruling must show that the ruling resulted in harm or prejudice to his or her case. Bahl v. Country Club Mkt., Inc., 410 N.W.2d 916, 919 (Minn. App. 1987).

Cole concedes that when there is evidence a plaintiff was negligent, this presents an issue of causation and that evidence of plaintiff's alcohol consumption may be probative on that issue. See VanHercke v. Eastvold, 405 N.W.2d 902, 906 (Minn. App. 1987) (holding that party's level of intoxication is relevant to issue of causation); Jonathan v. Kvaal, 403 N.W.2d 256, 262 (Minn. App. 1987) (holding same), review denied (Minn. May 20, 1987). Evidence of a party's level of alcohol consumption is especially relevant when the party sustains injuries from a slip and fall. Myers v. Winslow R. Chamberlain Co., 443 N.W.2d 211, 216 (Minn. App. 1989) (holding that, in slip and fall case, it was reversible error to exclude evidence of plaintiff's level of intoxication because it did not give jury whole picture), review denied (Minn. Sept. 27, 1989). Only where there is no evidence that a party's level of intoxication contributed to his injuries does the prejudicial effect of that evidence outweigh its probative value. Mueller v. Sigmond, 486 N.W.2d 841, 843-44 (Minn. App. 1992) (holding that evidence of plaintiff's intoxication was properly excluded because defendant failed to show that it had "contributed to cause" of accident), review denied (Minn. Aug. 27, 1992); Hastings v. United Pac. Ins. Co., 396 N.W.2d 682, 684 (Minn. App. 1986) (holding exclusion of plaintiff's alcohol consumption proper where there was no evidence that it was proximate cause of the accident or that plaintiff failed to exercise due care in avoiding collision).

Evidence of intoxication is also admissible to show that it may have impaired plaintiff's recollection or powers of observation of the events surrounding his or her accident. See Kedrowski v. Czech, 244 Minn. 111, 118, 69 N.W.2d 337, 342 (1955) (holding that evidence of whether plaintiff was under influence of liquor "was competent to show impairment of his powers of observation * * * and the likelihood of impaired recollection"). Here, Cole was the only eyewitness to the events that happened immediately prior to his fall. Cole's ability to observe and remember the events surrounding his fall was crucial and evidence of his alcohol consumption was properly admitted to show the possibility that his ability to recall the events surrounding his accident might be impaired.

Next, Cole argues the district court erred when it allowed Officer Brian Illgen to testify to what witness Joyce Ann Pugh told him at the scene of the accident. During trial, Illgen testified that Pugh told him that Miller checked his mirrors before pulling away from the curb. Cole claims that the statements of Illgen are inadmissible hearsay.

Contrary to Cole's assertion, Illgen's testimony was not inadmissible hearsay. Minnesota Rule of Evidence 801(d)(1)(D) provides that a statement is not hearsay if it is a prior statement by a witness and the witness testifies at trial and is subject to cross-examination concerning the statement, and the statement is "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter." A witness's statement made to police officers within a few minutes after an accident may fall within the hearsay exception contained in Minn. R. Evid. 801(d)(1)(D). State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

Here, shortly after Illgen arrived at the accident scene, Pugh told him that she observed the bus driver check both his mirrors before pulling away from the curb. Pugh's statements describe an event she perceived, and they were made immediately after the accident. Most importantly, Pugh testified at trial and was available for cross-examination regarding her statements. The district court did not err in admitting Illgen's testimony.

Finally, Cole argues that the district court erred when it allowed testimony that Cole's medical bills at the Hennepin County Medical Center (HCMC) were paid by insurance. At trial, Cole called Sue Falldin from HCMC to testify that the charges for his inpatient care were $75,590.37. On cross-examination, Falldin stated that $19,310 was accepted in full satisfaction of these services. On re-direct and over defense objection, Falldin testified that the reason the remaining amount was written off was because Cole was on medical assistance. On re-cross, Falldin stated that Cole's medical bills were not actually paid by medical assistance, but by other insurance. The district court then instructed the jury to disregard the testimony regarding insurance.

Here, the fact that the jury failed to award Cole any past damages supports his argument that the testimony about insurance payments and the part forgiveness of his medical bills likely had a bearing on the damage amount found by the jury. Because the jury did not even award $19,000 in past medical expenses, we are left with the conclusion that the improper reference to insurance impermissibly permeated the damage issue. See Jeddeloh v. Hockenhull, 219 Minn. 541, 552, 18 N.W.2d 582, 588 (1945) (holding that overemphasis and repeated references to insurance may constitute reversible error); but see Johnson v. Sleizer, 268 Minn. 421, 427, 129 N.W.2d 761, 764-65 (1964) (holding that brief references to insurance did not constitute reversible error warranting new trial); Anderson v. Enfield, 244 Minn. 474, 480-81, 70 N.W.2d 409, 414 (1955) (holding that "mere mention of insurance does not always constitute reversible error").

The trial court erred by not sharply limiting the need to mention insurance, and by virtually allowing it in as substantive evidence on the value of appellant's medical experiences. We conclude, however, that the issue of liability is dispositive, and thus there is no need for a new trial on the issue of damages. It is settled that a plaintiff does not recover damages from a defendant where the plaintiff's fault is greater than the defendant's. See Minn. Stat. § 604.01, subd. 1 (1996) (setting forth comparative fault factors); see also Alden Wells Veterinarian Clinics, Inc. v. Wood, 324 N.W.2d 181, 184 (Minn. 1982) (holding that where jury found plaintiff 55% negligent, plaintiff precluded from any recovery).

Here, the jury found that Miller was not negligent in his operation of the bus and that Cole was negligent. We have affirmed the jury's special verdict on the issues of negligence and causation. As such, the discussion of damages is moot, and Cole is simply precluded from recovering against Miller or MTCO.