DUANE BENTON, Judge

Plaintiff Kathryn C. Rodriguez suffered serious permanent injuries when the automobile in which she was riding rolled over in Warren County. Following verdict and judgment for her, Suzuki Motor Corporation ("Suzuki") appealed, alleging constitutional and trial errors. Mo. Const. art. V, § 3. This Court concludes that the evidence of alcohol consumption was improperly excluded, and on retrial, the jury should be instructed to award punitive damages only if supported by clear and convincing evidence. Reversed and remanded.

On February 11, 1990, defendant Deborah Dubis was driving a Suzuki Samurai on Highway 94, with plaintiff Rodriguez and Lisa Nunnally as passengers. The vehicle left the right side of the roadway, traveled into the ditch, and struck a 14-inch-high dirt headwall — the side of a cemetery driveway. What happened next was hotly disputed. According to the driver and passengers, the Samurai returned to the roadway. crossed the center line, and when Dubis turned sharply right to correct, the vehicle rolled over. According to Suzuki, the Samurai never returned to the roadway. Instead, the impact with the cemetery driveway launched the vehicle into the air, causing the Samurai to roll in the ditch.

Rodriguez asserted claims of strict products liability, negligence, breach of warranty, and punitive damages against Suzuki, and a negligence claim against Dubis. In addition, Suzuki cross-claimed against Dubis, alleging negligence.

The jury found Rodriguez's damages at $30 million, assessing fault at 100% to Suzuki, 0% to Dubis, and 0% to Rodriguez. In addition, the jury returned punitive damages against Suzuki for $60 million. On remittitur, the circuit court reduced the compensatory award to $20 million and the punitives to $20 million.

I.

Suzuki argues that the trial judge erred in excluding all evidence of and all references to the consumption of alcohol, which surfaced in two contexts: impeachment of non-party witnesses, and the negligence/comparative negligence of parties Dubis and Rodriguez.

A. Non-parties

Generally, evidence of alcohol consumption "is relevant and material to the witness's ability to see, hear, perceive and observe." Johnston v. Conger, 854 S.W.2d 480, 483 (Mo. App. 1993), citing State v. Caston, 509 S.W.2d 39, 41 (Mo. 1974). This evidence is admissible by cross-examination or by independent testimony. Caston, 509 S.W.2d at 41. Any possible impairment of a witness's ability to recall is relevant to her credibility. Johnston, 854 S.W.2d at 484; Sanders v. Armour Co., 292 S.W. 443, 446-47 (Mo. App. 1927).

In Suzuki's offer of proof, several witnesses admitted drinking wine before the accident. Passenger Nunnally admitted feeling "tipsy." The trial court erred in barring evidence of alcohol consumption by the non-party witnesses.

B. Parties 1.

Previously, in a negligence action, evidence of a driver's alcohol consumption was admissible only if coupled with evidence of erratic driving or some other circumstance from which it might be inferred that the driver's physical condition was impaired at the time of the accident. Doisy v. Edwards, 398 S.W.2d 846, 849-50 [3] (Mo. banc 1966), citing Cheatham v. Chartrau, 176 S.W.2d 865, 868 (Mo. App. 1944) and Boehm v. St. Louis Public Service Company, 368 S.W.2d 361, 372 (Mo. 1963); McHaffie v. Bunch, 891 S.W.2d 822, 831 (Mo. banc 1995). The apparent rationale was that evidence of drinking could "prejudicially and improperly inflame the jury's sentiments." Strycharz v. Barlow, 904 S.W.2d 419, 425 (Mo. App. 1995).

Doisy's logic made more sense under a system of contributory negligence. Under that system, liability was essentially "all or nothing." Gustafson v. Benda, 661 S.W.2d 11, 28 (Mo. banc 1983)(Billings, J., concurring). Any contributory negligence barred recovery by the plaintiff. Walsh v. Southtown Motors Co., 445 S.W.2d 342, 348 (Mo. 1969). Similarly, a defendant's liability was for all or none of the damages. See Gustafson, 661 S.W.2d at 28; W. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 474 (1953). Under a zero-sum contributory negligence system, an improper focus on alcohol evidence would bar deserving plaintiffs, or penalize blameless defendants.

In 1983 Missouri adopted a comprehensive system of comparative fault. Gustafson, 661 S.W.2d at 16. The key to this system is that a jury decides the issues of relative fault and assesses appropriate percentages. Missouri Pacific Railroad Company v. Whitehead Kales Company, 566 S.W.2d 466, 474 (Mo. banc 1978). Comparative fault is based upon the principle of fairness, id., and is more "equitable and just." Gustafson, 661 S.W.2d at 28. Since the apportionment of fault and damages is factual by nature, a jury should be as fully informed as possible in order to determine the relative fault of the parties. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 67, at 470 (5th ed. 1984). A comparative fault system can better accommodate alcohol evidence than a contributory negligence system.

A practical reason to abandon the Doisy standard is that its application is inconsistent and unpredictable at trial. In Broderson v. Farthing, evidence that the driver consumed three glasses of wine and had alcohol on her breath was excluded because pulling into the path of another vehicle did not show "erratic driving." 762 S.W.2d 548, 550-51 (Mo. App. 1989). In Strycharz, supra, evidence that the defendant driver drank two beers and had alcohol on his breath was excluded because the driver's failure to swerve or see the plaintiff (though visible for 900 feet) did not show erratic driving. 904 S.W.2d at 424.

However, in other cases with strikingly similar facts, evidence of alcohol consumption was admissible. In Bohn v. James, evidence that the defendant drank three or four beers and had alcohol on his breath was admissible because speeding and failure to keep a proper lookout exhibited erratic driving. 573 S.W.2d 448, 449 (Mo. App. 1978). In Boehm, supra, a hospital record citing alcoholic breath was admissible because driving a motor scooter through a stop sign at 20 m.p.h. without stopping and with no headlight burning showed erratic driving. 368 S.W.2d at 371. In Cheatham, supra, evidence that the defendant had alcohol breath was admissible because driving in a zig-zagging and wobbling manner showed erratic driving. 176 S.W.2d at 868. In Hager v. McGlynn, evidence that the defendant consumed three scotch-and-waters and one liqueur was admissible because running a red light and not applying the brakes was erratic driving. 518 S.W.2d 173, 178 (Mo. App. 1974), overruled on other grounds by State ex rel. Sims v. Sanders, 886 S.W.2d 718, 721 (Mo. App. 1994). In Hansen v. James, evidence that the driver consumed several alcoholic beverages was admissible because inexplicably leaving the road, striking a utility pole, and going down an embankment showed erratic driving. 847 S.W.2d 476, 482 (Mo. App. 1992).

The cases are not even consistent on whether evidence of blood alcohol content above the legal limit is admissible. In Lauderdale v. Siem, evidence that the defendant had blood alcohol content above the legal limit was excluded because the accident debris located in plaintiff's lane was not evidence of erratic driving. 725 S.W.2d 897, 900 (Mo. App. 1987). Similarly, in Bentley v. Crews, evidence of blood alcohol content above the legal limit was excluded because crossing the center line was not erratic driving. 630 S.W.2d 99, 106-07 (Mo.App. 1981). However, in Diener v. Mid-American Coaches. Inc., a blood alcohol test above the legal limit was admissible because the driver crossed the center line. 378 S.W.2d 509, 512 (Mo. 1964). In Miller v. Eaton, evidence that the driver's blood alcohol content was above the legal limit was admissible because speeding on narrow, curving rural roads was erratic driving. 733 S.W.2d 31, 34 (Mo. App. 1987).

The inconsistency and unpredictability of the case law is not surprising in view of the confusion in the original pronouncement of the rule. Doisy itself concerned a head-on collision. The plaintiff offered evidence that: (1) a highway patrolman smelled liquor on defendant's breath; and (2) defendant's car crossed the center line and continued left toward the plaintiff for 100-300 feet, finally colliding with the plaintiff on the right shoulder of plaintiff's lane. 398 S.W.2d at 848, 849. This Court upheld the trial court's exclusion of the evidence of alcohol breath because there was "no evidence showing erratic driving." Id. at 849, 850.

The crowning ambiguity in Doisy is that it permits admission of alcohol evidence not only where there is erratic driving, but also in unspecified "other circumstances." Most courts have not even discussed this exception. See Parry v. Staddon, 769 S.W.2d 811, 814 n.3 (Mo. App. 1989). However, in Sewell v. MFA Mutual Insurance Company, there was no erratic driving. Nevertheless, evidence that the driver consumed five or six beers was admissible because the driver had no recollection of the events before the collision. The court invoked the "other circumstances" exception to infer impairment. 597 S.W.2d 284, 290 (Mo. App. 1980). Likewise, in Parry, supra, a test showing a blood alcohol content below the legal limit was admissible because failure to take evasive action was not erratic driving, but was other circumstances inferring impairment. 769 S.W.2d at 813. In Krenski v. Aubuchon, circumstantial evidence that the defendant smelled of alcohol, was flushed, slurred his speech, was unsteady on his feet, and had bloodshot eyes was admissible because speeding, swerving back and forth into the oncoming lane of traffic, and hitting a parked car was not erratic driving, but showed an impaired physical condition. 841 S.W.2d 721, 727 (Mo. App. 1992).

The only pattern in the cases is that almost every trial court determination on admission or exclusion has been affirmed on appeal, despite these wide factual variances. But see Stojkovic v. Weller, 802 S.W.2d 152, 154 (Mo. banc 1991); Bilzing v. Wentzel, 726 S.W.2d 787, 790 (Mo.App. 1987); Jones v. Freese, 743 S.W.2d 454, 456-57 (Mo. App. 1987)(2-1). Thus, the Doisy standard was no standard at all.

2.

This Court therefore declares a new standard for parties in civil cases: Evidence of alcohol consumption is admissible, if otherwise relevant and material. This standard applies in two situations. First, when the proponent does not allege intoxication as an independent act of negligence, the evidence of drinking may be part of the proof of other negligent acts alleged. In such cases, consumption of alcohol as an independent negligent act may not be submitted. See, e.g, Bowman v. Heffron, 318 S.W.2d 269, 274 (Mo. 1958). Nonetheless, the party against whom the evidence of alcohol consumption is admitted may request a limiting instruction. See Raskey v. Hulewicz, 177 N.W.2d 744, 748 (Nebr. 1970); NJI 2d 3.07-2 (Nebraska jury instructions). "If defendant wished to further emphasize the limited purpose of this evidence, it was free to request an instruction limiting the jury's use of this evidence." Tune v. Synergy Gas Corp., 883 S.W.2d 10, 15 (Mo. banc 1994). See also State ex rel. Kansas City Public Service Co. v. Shain, 134 S.W.2d 58, 61 (Mo. 1939); Scott v. Missouri Ins. Co., 233 S.W.2d 660, 665 (Mo. banc 1950).

The second situation occurs when intoxication is alleged as an independent act of negligence. Assuming a submissible case is made, intoxication is a basis for the verdict directing jury instruction. See MAI 5th 17.21.

The appropriate jury instruction serves to diminish any undue prejudice. Moreover, there are other ways to lessen possible prejudice. For example, the parties can voir dire potential jurors about their views on alcohol consumption. Examination of witnesses and argument by counsel can place the alcohol consumption in context for the jury. Accordingly, as to discussions of evidence of alcohol consumption, Doisy and its progeny are overruled.

3.

In its crossclaim against the driver Dubis, Suzuki alleged intoxication as an independent act of negligence. Suzuki is entitled to a verdict directing jury instruction if it presents substantial evidence — viewed in the light most favorable to Suzuki — to support its theory of Dubis' negligence. See Spring v. Kansas City Area Transportation Authority, 873 S.W.2d 224, 225 (Mo. banc 1994).

Suzuki met this burden by its offers of proof that showed alcohol consumption. Dubis herself admitted drinking two full and three sampler glasses of wine — about one-half bottle total — before the accident (passenger Nunnally testified that Dubis may have had four or five sampler glasses, not just the three Dubis admits drinking; and that "a couple of beers, probably, is all she [Dubis] could handle"). The Highway Patrol Trooper testified that he smelled intoxicants on Dubis' breath at the hospital more than an hour and a half after the accident.

Suzuki also offered evidence showing alcohol consumption as a legal cause of the damages. Suzuki's expert noted a lack of steering prior to collision with the headwall. The expert referred to an eyewitness statement that Dubis' vehicle drifted onto the shoulder, back onto the roadway, and then left the roadway a second time before colliding with the headwall. The Trooper found no evidence of braking or steering maneuvers before collision with the headwall. Dubis admitted driving off the right side of the road onto the shoulder and continuing off the road for 92-100 feet (about 1.2-1.3 seconds) without ever attempting to stop or slow down. Not until she actually felt an impact with the cemetery driveway did she attempt a steering correction. Further, the road was dry with no obstruction, impediment or oncoming traffic to force her off the road. Finally, a medical expert testified that the physical evidence was more consistent with an impaired driver. Suzuki was entitled to a jury instruction on Dubis' intoxication as negligence. See MAI 5th 17.21.

4.

Next, Suzuki contends that the trial court erred in excluding evidence of passenger/plaintiff Rodriguez's alcohol consumption on the issue of her comparative negligence. In answer to Rodriguez's petition and by its offer of proof, Suzuki asserted the affirmative defense of comparative negligence by "plaintiff's decision to and act of traveling in a vehicle operated by an intoxicated driver." See, e.g., McHaffie, 891 S.W.2d at 832, citing Miller, 733 S.W.2d at 34. Suzuki did not allege Rodriguez's intoxication as an independent act of negligence, but argued that drinking impacted her decision to enter and remain in the vehicle with an intoxicated driver.

Suzuki is entitled to submit Rodriguez's comparative negligence to the jury under the appropriate comparative fault instruction if it can meet its burden of production. See Spring, 873 S.W.2d at 225; MAI 5th 32.05. Suzuki met this burden by offering the following: Rodriguez admitted consuming alcohol with Dubis before entering the vehicle, and Rodriguez's blood alcohol content was about .11 at the time of the accident (compared to the .10 prima facie level of legal intoxication). § 577.037 RSMo 1994.

It is for the trier of fact to determine the weight of such alcohol evidence on plaintiff's decision to travel with an intoxicated driver. However, because Suzuki does not allege Rodriguez's intoxication as an independent act of negligence, Rodriguez may request a limiting instruction.

II.

Suzuki argues that this Court should require clear and convincing proof as the standard for punitive damages — an issue likely to recur on retrial.

In this case, the only instruction on burden of proof was the preponderance of the evidence standard, articulated in the general burden of proof instruction for regular civil claims. See Notes on Use, MAI 5th 3.01; Elam v. Alcolac, Inc., 765 S.W.2d 42, 224 (Mo.App. 1988), Kansas City v. Keene Corporation, 855 S.W.2d 360, 377 (Mo. banc 1993) (Holstein, J., concurring); MAI 3.01 (1964). In order to award punitive damages, the jury needed only to believe "more likely than not" the propositions of fact submitted in the instruction on punitive damages. See Wollen v. DePaul Health Center, 828 S.W.2d 681, 685 (Mo. banc 1992). Preponderance is the minimum standard in civil disputes. Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 1395 (1992). In Menaugh v. Resler Optometry, Inc. — with little discussion and citing no precedent — this Court rejected a higher standard of proof for punitive submissions, relying on "our normal requirements in the submission of civil cases." 799 S.W.2d 71, 75 (Mo. banc 1990).

The function of the standard of proof is to "allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323, 329 (1979).

The clear and convincing standard specifically is used

in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff's burden of proof.

Id. Missouri already requires this higher standard of proof in several types of civil cases. See Keene, 855 S.W.2d at 377.

Punitive damages "are imposed for the purpose of punishment and deterrence." State ex rel. Smith v. Greene, 494 S.W.2d 55, 60 (Mo. banc 1973). See also Menaugh, 799 S.W.2d 71 at 76 (Robertson, J., concurring); Keene, 855 S.W.2d at 378. Punitive damages thus are like other cases requiring the clear and convincing standard of proof: the remedy is so extraordinary or harsh that it should be applied only sparingly. Keene, 855 S.W.2d at 378.

A growing majority of states requires clear and convincing evidence before punitive damages can be considered. See Pacific Mutual Life Insurance v. Haslip, 499 U.S. 1, 23, 111 S.ct 1032, 1046, 112 L.Ed.2d 1 n. 11 (1991). Twenty-four states have adopted a clear and convincing standard by statute. Six states and the District of Columbia have adopted the standard by judicial decision. One state does not allow punitive damages at all, and two others do not in most civil cases.

Because punitive damages are extraordinary and harsh, this Court concludes that a higher standard of proof is required: For common law punitive damage claims, the evidence must meet the clear and convincing standard of proof. To the extent of its discussion of the standard of proof for punitive damages, Menaugh is overruled.

This change in the common law relates to requirements at trial, which are procedural and apply prospectively only. Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 377-78 (1937). The clear and convincing standard of proof for punitive damages shall apply to this case, all cases in which trial begins after February 1, 1997, and all pending cases in which a proper objection has been preserved. See Hartman by Hartman v. Hartman, 821 S.W.2d 852, 858 (Mo. banc 1991); Gustafson, 661 S.W.2d at 15.

III.

The judgment of the circuit court is reversed and the cause remanded for a new trial consistent with this opinion.

Holstein, C.J., Price, Limbaugh, Robertson, and Covington, JJ., concur, White, J., dissents in separate opinion filed.