Kentucky Personal Injury Lawyer Blog

In April of 2008, the Western District Court in Kentucky decided a case which involved a gender based hostile work environment claim. In that case, the facts were as follows. A woman, Ms. Parker worked in a pediatric medical care facility. In December of 2003, at the Christmas party, Ms. Parker was given a gift card to a local adult store as a ‘gag gift’. (See Parker v. Pediatric Acute Care, P.S.C., 2008 WL 746677 (Ky.App.)). Prior to getting the gift, Ms. Parker had gotten wind of it and went to her bosses and told them about it and to stop it because it would embarrass her at the party. Id. They did not and she got the gift. Id. Then, 5 months later, Ms. Parker was fired after working for defendants for over 20 years. In response, Ms. Parker sued in state court and alleged a sexually hostile work environment and retaliatory discharge. Id. The trial court dismissed her case and thus she appealed. Id.

The Kentucky Federal Court sustained the lower trial court’s rulings. It did so for the following reasons. It agreed that the one time, boorish behavior at the Christmas party was not harassment that was severe and/or pervasive and thus not enough for a hostile work environment claim. Id. In order to establish a prima facie claim for hostile environment and sexual harassment by a co-worker, a plaintiff must show, 1) she was a member of the protected class, 2) she was subjected to unwelcome harassment, 3) the harassment was based upon gender, 4) the harassment unreasonably interfered with the plaintiff’s work performance or created a hostile or offensive work environment that was severe and pervasive, and 5) some basis exists for imputing liability to the employer.” Id.

The court stated that “courts have made it clear that an isolated incident, boorish behavior or mere utterance is not sufficient to demonstrate a hostile work environment.” Id. There is a difference between harassing and merely objectionable conduct. Id.

The hostile work environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. (cites omitted). The court went on to discuss the totality of the circumstances evaluation and how you have to look at the frequency, severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance. Simple teasing, offhand comments, and isolated incidents will not amount to discriminatory changes in the terms and conditions of employment. (cites omitted).

If you have been the subject of hostile work environment, please call and speak to a Louisville employment lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In September of 2007, the Western District Court in Kentucky decided a case which involved a hostile work environment claim. In that case, the facts were as follows. A woman, Ms. Cecil was hired by a company to handle drafting deeds of easement and purchase agreements. She was to be out in the field a lot. She felt she was discriminated against in that she claimed she did not receive any training as compared to her male counterparts. Further, she claimed she was treated unpleasantly and was given unattainable goals. Also, a scheduled field trip she had was cancelled and she contends that was based as a result of the gender discrimination. Further, her boss allegedly stated she looked like Lisa Douglas on the Green Acres television show and that she dressed too nice. And finally on one occasion, her boss used derogatory language and acted violently towards her. (See Cecil v. Louisville Water Company, 2007 WL 2746667 (W.D.Ky.))

A hostile work environment case takes a totality of the circumstance view to it. Each case is viewed on a whole and independently. There is nothing truly written down as to what constitutes a hostile work environment and what does not. There is case law and rules to put in some guidelines as to who can file for a hostile work environment claim, but there are no exact guidelines like in a criminal case. There is nothing that says that someone has to use the “f” word more than 20 times to have a case. Or that a woman (or man) has to be degraded and made fun of 50 times in 6 months to have a hostile work environment case. Or that if you are from Mexico and they make fun of you they have to do so 20 times as compared to being from Colombia where they have to make fun of you only 10 times. There are no such rules or regulations for a hostile work environment case.

In Cecil, the court cited to the Supreme Court for guidance. “When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated. (cites omitted). In determining whether an actionable hostile work environment claim exists, we look to “all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (cites omitted).

“A hostile work environment claim, under Title VII, is actionable “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (cites omitted). To establish a prima facie case of gender –based harassment, Cecil must establish that 1) she was a member of the protected class, 2) she was subjected to unwelcome harassment, 3) the harassment was based upon gender, 4) the harassment was sufficiently severe or pervasive to create a hostile or abusive working environment, and 5) some basis exists for imputing liability to the employer.” Id. The Supreme Court has repeatedly held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ Id. Non-sexual conduct may be illegally sex-based and properly considered in the hostile environment analysis where it can be shown that but for the employee’s sex, she would not have been the object of harassment. Id.

The Cecil court did site a Supreme Court case which stood for the proposition that “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination ... because of… sex.’ (cites omitted). The Supreme Court has stated that it is important to distinguish between harassment and discriminatory harassment in order to ‘ensure that Title VII does not become a general civility code.’ (Cites omitted).
The Cecil court also cited other case law that stated that in a hostile work environment case the directive is to “evaluate whether the actions, properly viewed in context, ‘could be viewed by a jury as humiliating and fundamentally offensive to any woman in that work environment, and they go to the core of the entitlement of a workplace free of discriminatory animus.” (cites omitted). The Cecil court then went on to site other cases that did not find enough to sustain a sexual harassment claim. For example, in one case a male supervisor called his female employee “hot lips” and made comments about what she wore and told dirty jokes in front of her did not create a hostile work environment. (cites omitted). In another case, a supervisor put a pack of cigarettes under a female employee’s bra strap, made a remark that she had ‘lost her cherry’ and said he was aroused by the phrase “dick the malls”, was not enough for hostile work environment claim. (cites omitted). And finally in another case, an employer teasing the employee about her dancing on tables at a local strip bar, joking about her “hooterville” and “titsville”, calling her “broad” and making fun of her pronunciation of “bosom” did not create an objectively hostile work environment.” (cites omitted).

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In September of 2007, the Western District Court in Kentucky decided a case which involved a hostile work environment claim. In that case, the facts were as follows. A small group of former employees to Ann Taylor sued claiming they were discriminated against because of their national origin. (See Lescailles v. Ann Taylor Distribution Services, Inc., 2007 WL 2725972 (W.D.Ky.)). The plaintiffs complained they were being treated differently than their American counterparts. The plaintiffs and defendant had a few meetings to try to work their differences out. Unfortunately, the meetings did not help. The plaintiffs claimed they got less desirable jobs. They were not rotated to good positions. Id. That they were not allowed to work with relatives, but some Americans were, and that they were called offensive words like “stupid” or “bastard”. Id.

The Kentucky Civil Rights Act was modeled on Title VII of the Civil Rights Act of 1964. Id. To make out a hostile work environment claim, an employee must show that 1) the employee is a member of a protected class, 2) the employee was subject to unwelcome harassment, 3) the harassment was based on the employee’s protected status, 4) the harassment created a hostile work environment and 5) the employer failed to take reasonable care to prevent and correct any harassing behavior. Id. A hostile work environment exists “when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently sever or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. To make out a prima facia case, plaintiffs must satisfy both an object and subjective test proving 1) that the conduct was sever or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and 2) that a plaintiff subjectively regarded the environment as abusive. Id. On a motion for summary judgment trying to dismiss the case, the court must search for evidence about “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether the conduct unreasonably interferes with an employee’s work performance. Id. “Clearly the federal and state discrimination statutes are not intended to make actionable claims of workplace disagreements or isolated objectionable comments.” Id.

“A review of many cases which discuss hostile work environment claims reveals that pervasive name-calling, threatening language, intimidating actions or insults are standard and probably required fare in every instance.” In Lescailles, the court noted that there were no ethnic or national origin based derogatory remarks or slurs; just generic ones. Id. Further the language could have been taken as ‘offensive’, but the plaintiffs were never threatened nor humiliated by such words. Id. The court then goes on to site additional cases that had shown conduct that was viable as hostile and others that did not.

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Sometime prior to July of 2009, a rear-end car accident occurred in Bowling Green, Kentucky that lead to a lawsuit between Mr. Norman Peters and Ms. Katherine Wooten. As a result of the rear-end car accident, Mr. Peters sued Ms. Wooten. (See Peters v. Wooten, 297 S.W.3d 55 (Ky.App.2009)). In Peters, Mr. Peters was rear-ended by Ms. Wooten in a car accident. Mr. Peters’ head hit the glass in back of the truck cab and paramedics arrive on the scene. Mr. Peters refused treatment and was able to drive home. Id. Ms. Wooten’s vehicle was totaled. Id. A short while after, Mr. Peters claimed he began to suffer severe headaches and neck pain. Id. So, two days after the accident he went to a doctor and had x-rays taken and an MRI. Id. Then, Mr. Peters had no more medical treatment for 3 months, though he said he complained of neck and headaches from the car accident. Id.

At trial, Mr. Peters had two doctors testify via video depositions wherein both stated that the injuries were as a result of the accident and where one said that Mr. Peters had a degenerative disc disease and that though the accident did not cause that, it may have caused aggravation to a preexisting condition. Id. Neither doctor reviewed Mr. Peters’ prior medical history before the accident. Id. Further, at trial, Mr. Peter’s wife testified as to how injured he was and that she knew something bad was wrong with him. So, on cross examination, Ms. Wooten’s car accident attorney asked Mr. Peter’s wife why her husband did not go to therapy in 3 months if he was so injured, and to that she responded that they could not afford it. Id. But, when she was asked why he did not use the $10,000 in medical benefits coverage available to him, she finally relented and responded that there were monies available but that she did not know the amount. Id. Mr. Peters’ car accident lawyer objected as improper reference to collateral source benefits, but the trial court overruled. Id.

The below video is not a video of the rear-end car acciden involving Mr. Peters and Ms. Wooten, but is just an interesting video showing a rear-end car accident for my blog readers.

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In a Knox Circuit Court in the state of Kentucky, a trial was held in May of 2008 involving a car accident. In that car accident case, Mr. Harmon was hit by a car driven by Mr. Steele. It was established that both vehicles were going no more than 10 mph and neither went to the hospital. Mr. Harmon was later diagnosed with whiplash. Based on those injuries he sued Mr. Steele who had a $25,000 auto policy. Further, at trial, he also brought in and sued his under insured policy which was with Occidental Fire & Casualty (OFC). At trial, OFC made motions to be let out, but the trial judge denied these motions and the case went to the jury. The jury returned a verdict in excess of $250,000. The jury awarded Mr. Harmon $120,000 to be paid by OFC as per their UIM contract. (See Occidental Fire & Casualty Company v. Harmon, 2009 WL 4406065 (Ky.App.)). Both sides had Kentucky car accident attorneys representing their interests.

Accordingly, OFC appealed. The appellate court reversed stating that it was improper to have OCF involved in this trial as there was no Coots settlement. Id. OFC constantly objected at trial stating that it should not be a named party to the action as its relationship in this matter was purely contractual. Id. In an earlier Kentucky Supreme Court case, the Court did hold that identification of the UIM carrier at trial was required only in situations where the UIM carrier had protected its subrogation rights with a Coots procedure. Id. But, what about a situation like the case at hand where the UIM carrier had no Coots agreement? In another Kentucky Supreme Court case, this exact situation was decided. Under that fact pattern, the Court ruled that the UIM carrier did not have to be identified at trial. Id. It stated that when the UIM carrier has not reached a Coots settlement with the tortfeasor, the tortfeasor remains primarily liable to the plaintiff. Id. The UIM carrier is only potentially liable, contingent upon a judgment in excess of the tortfeasor’s own liability coverage. Id. (A Kentucky car accident attorney can assist in explaining a Coots settlement.) Without a Coots settlement, the UIM carrier is not a real party in interest but is only potentially liable by contract if the tortfeasor is found liable. Id.

The appellate court then looked at whether naming the UIM carrier at trial was an abuse of discretion and something that could cause the case to be reversed. In deciding that issue, the court looked at the long standing rule that liability insurance is not to be mentioned at trial. Id. The basis of that policy decision has long been that inherent prejudice results from a jury knowing of the existence of liability insurance. Accordingly, in that OCF was not a real party in interest, it was wrong for the trial court to not exclude OCF from the jury. Id. Accordingly the case was reversed and remanded back to Knox Circuit Court for a new trail. Id. (Andrew Alitowski is a Kentucky car accident attorney that can explain this case for you.)

If you have been the subject of a Louisville car accident matter, please call and speak to a Louisville car accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In a recent Kentucky Court of Appeals case, “An airport employee who sustained shoulder injuries in a car accident while traveling home from the airport, after attending a required out-of-state training session for work, fell under an exception to the “coming and going” rule and therefore was injured in the course and scope of her employment. The employee’s main place of work was the airport and the “coming and going” rule maintained that injuries sustained by workers when going to or returning from the place where they generally perform their employment are not deemed to be in a part of their employment. However, the employee fell under the exception because she was not just traveling to and from her regular place of employment but had been on a special mission for her employer.” Barry v. US Airways Group, Inc., 2009 WL 684821 (Ky.App.). She hired a Louisville car accident lawyer to assist her.

Ms. Barry was hired by US Airways in October of 2004 to work as a customer service representative at the Louisville International Airport. Her main job duties was to issue tickets, check baggage, assign seat and work the counter and gate areas. But, she was also required to attend infrequent out of state training programs. Id. Ms. Barry injured herself in December of 2006 after she attended a required 3 day computer training program in Charlotte, N.C. . On that day, she returned to the Louisville airport and after picking up her luggage and checking the schedule, Ms. Barry got into her car and left the airport. While on I-264, on her way home, Ms. Barry was involved in a Louisville car accident that caused her to sustain a torn rotator cuff and two ruptured cervical discs. Her vehicle was hit in the rear.

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The Court of Appeals of Kentucky recently decided a car accident case that involved the issue of insurance coverage. Angela Richardson was involved in a car accident in Kentucky. She was injured as a result of the car accident. The accident occurred in April of 2003. At trial, the judge dismissed the case on summary judgment in favor of progressive Northern Insurance Company. Ms. Richardson appealed. And the appellate court held that the trial court was right. (See Richardson v. Progressive Northern Insurance co., 2009 WL 103167 (Ky.App)).

In Richardson, Ms. Richardson was seriously injured in a car accident when a truck driven by Gene Boes and owned by Terry Stanton d/b/a Rock bottom Trucking turned in front of her car, causing the accident. Ms. Richardson sued Mr. Boes and Mr. Stanton and in the suit named Progressive as Mr. Stanton’s insurance carrier. Progressive filed a declaratory action seeking a ruling as to whether it was obligated to provide coverage. A default was entered in the declaratory action after Mr. Boes and Mr. Stanton failed to answer. In other words, Progressive won in the declaratory matter which basically proved that Progressive did not have to put up a defense for Mr. Boes or Mr. Stanton in the main case because Progressive did not insure either party at the time of the accident. Thus, Progressive filed a motion to get out of the main trial and it was granted. At the main trial, Progressive showed that it did not insure the defendants from November 7, 2002 through May 7, 2003. T he accident was in April 2003. Progressive showed proof that it mailed out a “notice of cancellation due to non-payment of premium” to the defendants and that they never responded. Ms. Richardson's car accident lawyer was behind the eight ball in trying to keep Progressive in.

At the main case, Mr. Boes and Mr. Stanton indicated that they believed that the insurance was in place, but offered no proof. And so Ms. Richardson appealed claiming that there were issues of material facts that could not be dismissed and had to go to a jury. But, the appellate court did not agree stating basically that there were no issues of material fact. The Progressive policy was clearly not in effect at the time of the accident and thus Progressive could not be held liable for this car accident. And thus Ms. Richardson's car accident attorney had no way of recovering from Progressive for this car accident.

If you have been the subject of a Louisville car accident matter, please call and speak to a Louisville car accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

The Court of Appeal of Kentucky recently decided a case that involved a car accident and an employee who drove in his car and later was involved in a car accident. This case was decided in July of 2009. In July of 2004, Christopher Gordon drove an uninsured car that hit a car driven by James Butler that also had a passenger in it. Mr. Butler was a former employee of Levee Lift, Inc.. After a 3 day trial, the trial court dismissed the law suit against Mr. Gordon’s employer Levee and dismissed the case against Mr. Gordon’s wife for letting him drive her car uninsured. A jury ultimately found no liability against Levee and awarded Butler and his passenger approximately $2 million in total. After motions were filed, the trial court did change its earlier ruling as with regard to Mrs. Gordon stating that she did in fact have a statutory duty not to knowingly permit the vehicle which she co-owned to be driven by an unlicensed driver. (See West v. Levee Lift, Inc., 2009 WL 2192746 (Ky.App. 2009)).

Mr. Gordon on the day of the accident went to work and worked until approximately 4pm. He left and went home and approximately 2 hours later, drove his car on a trip with his wife to Alabama. That is when the accident happened. While at work, Mr. Gordon was alone with only one co-employee. At trial, that co-employee testified that he did not see Mr. Gordon drink any alcohol. Mr. Gordon did testify that he drank a little at work, but that he was not intoxicated. He also admitted to consuming about 8-12 shots of vodka on the drive home from work. Further, evidence at trial came out that his employer Levee knew he did not possess a valid driver’s license but that they had admonished him previously not to drive to and from work and in fact paid him $250 per month for travel expenses. These are all facts that the car accident attorney for the defense brought out at trial.

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The Supreme Court of Kentucky recently decided a “Coots” case in favor of the Underinsured Motorist Carrier (UIM Carrier). In June of 2009, the Kentucky Supreme Court held that a letter sent by a Plaintiff to his UIM Carrier did not satisfy the legal Coots standard and thus the dismissal by the lower court was appropriate.

In Malone v. Kentucky Farm Bureau Mutual Insurance Co., 287 S.W.3d 656 (Ky. 2009) Mr. Malone was involved in a car accident with Mr. Bruce. Mr. Malone, via his car accident lawyer, sued Mr. Bruce and then added his own UIM Carrier Kentucky Farm Bureau (KFB). In July of 2005, Mr. Bruce’s insurance company, Atlanta Casualty, offered to pay its policy limits to Mr. Malone. In Kentucky, pursuant to a well known case, Coots, in order to properly resolve a car accident case that involves a UIM carrier, the injured party must follow KRS 304.39-320 which describes what type of notification the injured party must give to his or her UIM carrier prior to settling a claim with the underlying bodily injury carrier; in this case, Mr. Bruce’s carrier.

Pursuant to KRS 304.39-320, if an injured person, or, in the case of death, the personal representative agrees to settle a claim (emphasis added) with a liability insurer and its insured, and the settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an underinsured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all underinsured motorist insurers that provide coverage. The underinsured motorist insurer then has a period of thirty (30) days to consent to the settlement or retention of subrogation rights. An injured person, or in the case of death, the personal representative, may agree to settle a claim with a liability insurer and its insured for less than the underinsured motorist’s full liability policy limits. If an underinsured motorist insurer consents to settlement or fails to respond as required by subsection (4) of this section to the settlement request within the thirty (30) day period, the injured party may proceed to execute a full release in favor of the underinsured motorist’s liability insurer and its insured and finalize the proposed settlement without prejudice to any underinsured motorist claim.

In Malone’s car accident case, after it received the offer from Atlanta Casualty for the policy limits, Mr. Malone’s car accident lawyer sent a “Coots” letter to KFB and wrote in pertinent part “Atlanta Casualty has advised that they have policy limits of $25,000.00 and this amount has been offered to settle their portion of Mr. Malone’s claim. We are considering whether to accept this offer….” The letter then went on to site the “Coots” case and put in the rest of the legal language that was needed to satisfy KRS 304.39.320.

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A Federal Court in Louisville, Kentucky recently answered the question on whether evidence of numerous criminal convictions of the driver of a truck involved in an automobile accident should be allowed in at trial in a civil automobile accident case.

The facts of that case are as follows. An accident occurred on I-65 in Louisville. A car was in traffic when it was hit from the rear by a tractor-semitrailer rig owned and operated by Beelman Truck Company. The impact pushed the car into the vehicle in front of it, forcing the car partially under the semitrailer of that vehicle which was operated by Paschall and driven by a Mr. Wendell Price. Initially, Plaintiff Ms. Smith only sued Beelman Truck Company. But, Beelman brought in the Paschall vehicle claiming that it was defective in that among other things, it had an underride protection bumper that was inadequately attached to the semitrailer. Beelman also claimed that Paschall was negligent in the hiring or retention of Mr. Price because Mr. Price failed to recognized the inadequacy of the underride bumper and that he was unqualified to operated a commercial motor vehicle. (See Smith v. Beelman Truck co., 2009 WL 126590 (W.D.Ky.))

It was brought to the court’s attention that Mr. Price had prior felony and misdemeanor convictions. Paschall moved to exclude this evidence in that it contends that Mr. Price’s prior convictions are irrelevant and therefore inadmissible. And if even irrelevant, its probative value is substantially outweighed by the danger of unfair prejudice. This was a very good outcome for Mr. Price’s Louisville car accident attorney.

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Recently, in January of 2009, the U.S. Court of Appeals for the 6th Circuit decided a case regarding hostile work environment and race discrimination. An African American woman named Christine Ladd sued her former employer for the race based harassment and retaliatory discharge against her former employer Grand Trunk Western Railroad. (See Ladd v. Grand Trunk Western Railroad Incorporated, 442 F.3d 495 (6th Cir. 2009)).

Ms. Ladd began her employment in April of 2000 with Grand Trunk. She was twice promoted. She was the only African American woman there. She claimed a co-worker in the fall of 2004 sexually harassed her. And then in March of 2005, she claimed retaliatory discharge after she file an injury report and was subsequently fired. In her deposition, she only sited to one person, a co-worker, not superior, who made a specific race or sex based offensive remark. While at work, Ms. Ladd did hear remarks about someone being a lesbian or gay or dyke, but these comments were not directed at her. Further, Ms. Ladd testified that she did not complain about any of the remarks to anyone nor did she complain of any of the other remarks about “this being a man’s job, etc.” to any other supervisor. Though, she did complain once to a supervisor when she thought a co-worker called her a “black bitch.” This matter was immediately investigated by her supervisors and was resolved. A Louisville employment lawyer could help explain the intricacies of such a matter.

Then in March of 2005, Ms. Ladd hurt her back while at work because she claims the man who called her a black bitch, moved the truck while she was on it, causing her back pain. She reported it right away. The matter was investigated and it sent to a formal hearing to see if Ms. Ladd was lying ie. filing a false injury report, or if the man who moved the car was lying. After several witnesses testified, it was determined that Ms. Ladd was not credible and so she lost. After she lost, Ms. Ladd filed a sex discrimination charge with the EEOC based on the events that had taken place. The EEOC granted Ms. Ladd her right to sue letter and so she brought her hostile work environment claims.

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Recently, in June of 2009 an appellate court in Kentucky sustained the lower trial court’s October 2007 rulings in a criminal case that sent a man to prison for 15 years. The Supreme Court denied reviewing it.

In Mills v. Commonwealth, 2009 WL 1705605 (Ky.App.), the following events transpired. On September 3, 2006, it was alleged that Mr. Mills, while driving drunk, was involved in a car accident that killed another man and then drove away. The accident happened around 10:45pm. A key witness testified that he saw Mr. Mills earlier that evening staggering and carrying 3 beers. Another witness says that she saw Mr. Mills around 2am (3-4 hours after the accident) and that Mr. Mills was not drunk and did not smell of alcohol. Also, there was testimony that at the accident scene it did appear Mr. Mills was staggering around, but the witness could not testify if it was as a result of being drunk or hurt. Another witness who pulled Mr. Mills out of the car testified that he did not appear to be drunk, nor did he smell of alcohol. And then, a doctor at the hospital that saw Mr. Mills 2 days after the accident did testify that he smelled of alcohol. Mr. Mills did admit that he had been drinking that day, 2 days after the accident. He also admitted to drinking on the day of the accident, but not on the night of, and that the only reason he fled the scene was because he was shaken up when he heard the sirens. Mr. Mills was charged with murder, fleeing the scene of an accident, assault, and DUI.

At trial, the state introduced evidence of 5 photographs of the scene of the accident. Two of them showed the damage to the car the victim was in, with the victim still in it, though covered up. The trial court and appellate court found no reversible error in showing these to the jury. They showed points of impact and were even used to help contradict Mr. Mills’ story that the driver of the other vehicle crossed the double yellow lines. The prosecution is permitted to prove its case by competent evidence of its own choosing, and the defendant may not stipulate away the parts of the case that he does not want the jury to see. The general rule is that relevant pictures are not rendered inadmissible simply because they are gruesome and the crime is heinous. Id.

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