Taylor v. RaceTrac Petroleum, Inc.

*765Andrews, Judge,

concurring specially.

I disagree with the majority’s conclusion that the evidence was irrelevant on the element of damages; however, I agree the evidence could have prejudiced the jury’s decision on the issue of liability. Therefore, I would hold that the trial court erred in not granting the plaintiffs’ motion to bifurcate the trial on the issues of liability and damages.

“The ‘full value of the life of the decedent’ consists of two elements, the economic value of the deceased’s normal life expectancy and the intangible element incapable of exact proof.” Miller v. Jenkins, 201 Ga. App. 825, 826 (412 SE2d 555) (1991). This intangible element of loss is considered from the standpoint of the deceased. In other words, the deceased’s loss of his relationship with the plaintiffs and others and the associated factors such as the society, advice, counsel, and companionship with the plaintiffs and others are to be compensated by the jury based on these relationships. Wilburn, Ga. Law of Damages § 37-6, 331 (4th ed.). Thus, “[t]he plaintifffs] and others can testify about the relationship [with the plaintiffs] in general or in specific terms so that the jury may determine what intangibles were lost by the deceased in the destructions of such relationship(s).” Id.

In determining what evidence is admissible on the intangible value of the decedent’s life, the law affords those witnesses testifying a wide latitude “so that the jury may consider every fact and circumstance that would throw light upon the value of the decedent’s life.” Overby & Butler, What’s A Human Life Really Worth? Recovering Damages For Decedents’ Non-Economic Losses in Georgia Wrongful Death Actions, 7 Ga. State Univ. L. Rev. 439, 454 (1991), citing Pollard v. Boatwright, 57 Ga. App. 565 (196 SE 215) (1938).

In this case, the plaintiffs introduced evidence that Steed was “loving” and “friendly,” and that he had “charisma,” loved sports and was good in art. They also introduced into evidence a Shamrock High School football program dedicated to Steed, a videotape of Steed’s years in high school, and photo albums from 1973, just after Steed was born, to just before he was killed. As a result, the trial court found the plaintiffs had opened the door to RaceTrac’s introduction of evidence showing that Steed routinely used drugs and drank to excess.

The court allowed RaceTrac to question Telenko about Steed’s propensity to drive fast, not necessarily obeying traffic laws, and using LSD and marijuana. There was also testimony from another friend of Steed’s that they were in a group which got together every day and “would proceed to figure out how we were going to get intoxicated for the rest of the day.” The witness also said that the group “did a lot of acid, drank a lot of beer, smoked a lot of pot.”

*766Decided June 10, 1999 Reconsideration denied June 30, 1999 — Cert. applied for. Phears & Moldovan, H. Wayne Phears, Richard E. Harris, for appellants.

This witness further testified that Steed engaged in risky behavior, i.e., “driving on five hits of acid and two joints and ten beers.” She said that Steed had a bad temper, was rowdy and aggressive.

The majority opinion analyzes this evidence of Steed’s behavior only from the standpoint of how it related to Steed’s potential life expectancy and earning capacity and ignores the issues of relevance as to the intangible value of Steed’s life and whether the plaintiffs opened the door to this testimony when they introduced their character evidence. Although the law in Georgia is not well developed on the issue of what is relevant evidence on the intangible value of life, if the plaintiff is allowed to introduce evidence of the deceased’s positive relationships and interests, then it follows that, as the trial court stated in this case, the plaintiffs have opened the door to evidence tending to show the negative aspects of the decedent’s relationships and interests. Therefore, Leo v. Williams, 207 Ga. App. 321 (428 SE2d 108) (1993) cited by the majority as authority for its holding is not applicable because that case does not involve testimony on the intangible value of a decedent’s life.

There is always a danger that evidence admissible for one purpose but not for another will prejudice the jury in reaching its decision on that other issue. This is such a case. Therefore, in cases of this type, the trial court must consider seriously the danger inherent in not bifurcating the trial as to liability and damages. Here, because the evidence concerning Steed’s drug use and drinking and driving was relevant in response to evidence introduced by plaintiffs on the intangible aspects of the value of Steed’s life, and yet was inherently prejudicial on the issue of liability, the trial court erred in denying the plaintiffs’ motion to bifurcate the trial. See Chupp v. Henderson, 134 Ga. App. 808, 812 (216 SE2d 366) (1975) (trial court erred in denying motion to bifurcate in auto accident case because evidence of driver’s propensity for careless and reckless driving, while essential to claim for punitive damages, was irrelevant and prejudicial to claim for compensatory damages).1 See also Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174 (421 SE2d 767) (1992) (trial court erred in denying motion to bifurcate because evidence of no-fault insurance was inherently prejudicial on the issue of liability).

*767Newman, Sapp & Davis, Alan L. Newman, Michele L. Davis, for appellees.

OCGA § 51-12-5.1 (d) now requires bifurcated trials on the issue of punitive damages.