Exclude Photographs that Do Not Accurately Depict the Conditions of the Accident

Exclude Photographs that Do Not Accurately Depict the Conditions of the Accident

Exclude Photographs that Do Not Accurately Depict the Conditions of the Accident

What do you do when the opposing party attempts to offer evidence of conditions at a location different than your incident?

For example, what if a trip occurs involving a wooden pallet used as a store display and the defendant store offers photos of pallets used in another store? This will address a specific piece of evidence, but the law applies generally to similar situations.

In this article, I will address a hypothetical example of where the Defendant seeks to introduce photographs and/or evidence of wooden pallets being used to display heavier items such as soda and water. These photographs and/or evidence of common industry standards are inadmissible at trial, because they have no tendency to make it more or less probable that the Defendants were negligent in their use and maintenance of unpainted wooden shipping pallets as a product display for potato chips. Plaintiff is not alleging whether it was improper to use pallets completely, but just in the circumstances here, including for a chip display.

The fact at issue is whether Defendants were negligent in their use and maintenance of wooden pallets for product display, not whether other stores were, therefore photographs and/or evidence of the same are irrelevant and inadmissible. Defendants were negligent in their use of wooden shipping pallets to display chips because chips are light and easily pushed back by customers, which created a constant tripping hazard. The same would not apply to heavier items; therefore photographs of the same are irrelevant and inadmissible. Finally, pursuant to Local Rule 212(a), the deadline for discovery has long since passed, and Plaintiff has provided Defendant with notice of the same. These photographs were not produced during the discovery period, and therefore should not be admitted at trial.

Where the issue raised involves the admissibility of evidence, “Pennsylvania trial judges enjoy broad discretion regarding the admissibility of . . . evidence.”  Daset Mining Corp. v. Industrial Fuels Corp.473 A.2d 584, 588 (Pa. Super. 1984). “Admissibility depends on relevance and probative value.  Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.”  Commonwealth v. Schoff, 2006 PA Super 307, P16 (Pa. Super. 2006).

I.          Photographs/evidence of other stores using pallets for product displays are not relevant to the issue of whether Defendants were negligent in the use and maintenance of the same and should be barred from evidence. 

Defendants may seek to introduce photographs of products displayed on wooden pallets in other stores. “The admission of photographs is a matter largely within the discretion of the trial judge.” Taylor v. Modena, 87 A.2d 195, 196 (Pa. 1952). These photographs should be barred from evidence, as they are irrelevant to the jury’s determination of whether or not Defendants were negligent in their use and maintenance of shipping pallets for product displays. In fact, these photographs would serve only to confuse the jury about what the area of the accident looked like.

The only explanation for Defendants’ attempt to introduce photographs taken in other stores would be to prove that using wooden pallets for product displays is a standard practice in the retail industry.  This would be wholly inappropriate, as courts have found that “[a] few casual photographs, unidentifiable as to date or place, of other localities … do not constitute proper proof.” McCarthy v. Kroger Co., 260 F. Supp. 384, 385 (W.D. Pa. 1966) aff’d 385 F.2d 150 (3d Cir. 1967).

Furthermore, Defendants should be barred from introducing any evidence about common industry standards related to the use of pallets for display.In Pennsylvania, courts have “roundly criticized and generally disapproved,” of the custom or practice of the industry standard. Dallas v. F.M. Oxford, Inc., 552 A.2d 1109, 1112 (Pa. Super. Ct. 1989). Pennsylvania courts have long held that “[i]f the act in question is obviously dangerous, then evidence of custom is inadmissible, because custom cannot change the quality of an act. . . . Hence, when its quality clearly appears from the act itself, there is no need to invoke the aid of custom to determine it.” MacDougall v. Pa. Power & Light Co., 166 A. 589, 593 (Pa. 1933).

Plaintiff does not argue that using wooden pallets for a display was negligent in and of itself. Rather, Plaintiff argues that Defendants were negligent because they had both actual and constructive notice that this particular display was inherently dangerous.

The pallets in the chip display that caused Plaintiff’s injuries were too low to the ground, and were unpainted and difficult to distinguish from the floor. The nature of the display was such that if any portion of the pallets were left uncovered, the display would be a tripping hazard. The chips were very light and could easily be moved back by customers to leave the surface of the pallets uncovered. Defendants’ design and creation of this display created a situation that required constant maintenance, which Defendants failed to perform. None of these facts at issue are made more or less likely with the introduction of photographs of other grocery stores, or evidence about common industry standards. They are therefore inadmissible and should be barred from evidence.


II.        Photographs/evidence of pallets displaying heavier products such as soda or water are not representative of Defendants’ display which caused Plaintiff’s injuries, and are therefore irrelevant and should be barred from evidence. 

Plaintiff anticipates Defendants will seek to introduce photographs of wooden pallets being used to display heavier items such as soda or water. Doing so would confuse the jury about which pallets Plaintiff tripped over, and what the scene of the injury looked like.

Pennsylvania courts have held that photographs which “confuse in the determination of the issue of the condition” of the scene of an injury should not be admitted into evidence. Puskarich v. Trs. of Zembo Temple, etc., 194 A.2d 208, 211 (Pa. 1963). Furthermore, “[p]hotographs are properly excluded where they do not fairly and accurately represent the object or the place of the injury as it existed at the time of the accident.” Tolbert v. Gillette, 260 A.2d 463, 465 (Pa. 1970). When the issue in a personal injury case is a specific condition, photographs which distort this condition are to be excluded.Vanic v. Ragni, 254 A.2d 618, 621 (Pa. 1969).

The issue in this case is whether Defendants were negligent in maintaining a potato chip display on wooden shipping pallets. Defendants’ decision to use wooden pallets for this display created a condition that needed constant maintenance. Defendants were aware that the pallets were a tripping hazard if they were not completely covered by product. Defendants were also aware that potato chips are light and therefore easily pushed back by customers. This condition is central to the outcome of this case, and photographs of wooden pallets displaying heavier items would distort this condition, and confuse the jury. It should therefore be ruled inadmissible.