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August 7th, 2019
This is the second part of the blog on the admissibility of evidence to support your case. The last one addressed admitting evidence regarding repairs done after your incident. Here we look at admission of evidence of other incidents that occurred prior to yours. As you recall the fact scenario: you are a passenger in a vehicle driven by your spouse. Your spouse loses control while negotiating a bend in the road and crashes. This causes you to suffer several injuries. You find out the water on the road ponded, causing an extremely slippery conditions. You also find out this condition has been a problem on the road for a long time. You file suit against PennDOT and much to your amazement PennDOT denies there was a dangerous condition and blame your spouse for the incident. After thoroughly investigating the matter and heated litigation of the claim, your Bordas and Bordas attorney finds out that there had been prior incidents.
You think, “FINALLY, the truth will come out and PennDOT will have to admit the incident was their fault.” However, much to your surprise, your attorney explains to you that the evidence of the prior incidents may not be admitted into evidence, because they are generally excluded. Fortunately, you are represented by an attorney from the law firm of Bordas and Bordas, who will work to get the crucial evidence in front of the jury.
This article will generally explain to you what the law is on the admissibility of other incidents and how your Bordas and Bordas attorney will get the evidence admitted.
A.Elements to Prove in order to Admit Evidence of Prior Accidents
Under Pennsylvania Law, evidence of prior accidents is generally inadmissible; however, if the moving party can prove certain elements, courts will allow the evidence under limited circumstances.
1. Sufficient Similarity
The Pennsylvania Supreme Court has held that “[u]nder some circumstances where, for example, the cause of the accident or the defective or dangerous condition is unknown or disputed, evidence of similar accidents occurring at substantially the same place and under the same circumstances may, in the sound discretion of the trial Judge, be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury.” Stormer v. Alberts, 401 Pa. 461, 466 (1960). The Superior Court in Whitman v. Riddell added that permitting evidence of prior similar accidents is a “limited exception” and “is tempered by judicial concern that the evidence may raise collateral issues confusing both the real issue and the jury.” Whitman v. Riddell, 471 A.2d 521, 523 (Pa. Super. Ct. 1984), citing Stormer, 401 Pa. at 466. Lockley v. CSX Transp., Inc. added that evidence of prior accidents is only admissible if the accidents were sufficiently similar to the subject accident and occurred under sufficiently similar circumstances. 5 A.3d 383, 395 (Pa. Super. Ct. 2010). Once sufficient similarity is established, evidence of the sufficiently similar, prior accidents is admissible, and any differences between the prior accidents and the subject accident “go to the weight of the evidence and not its admissibility.” Lockley, 5 A.3d at 396.
2. Notice of Defective/Dangerous Condition to Defendant
The Pennsylvania Supreme Court finds that “evidence of the occurrence of similar accidents is admissible for the purpose of establishing the character of the place where they occurred, their cause, and the imputation of notice, constructive at least, to the proprietors of the establishment, of the defect and the likelihood of injury.” Ringelheim v. Fidelity Trust Co., 330 Pa. 69, 71 (1938). Whitman v. Riddell differentiates between specific notice and general notice, stating that specific notice, which is the requisite level of notice for admitting evidence of prior accidents in order to prove a specific defective condition, requires the moving party to show that the prior accidents resulted from a cause that was not “wholly foreign to the cause at issue.” 471 A.2d at 524. Alternatively, the Whitman court found that notice of prior accidents that occurred in the same area as the subject accident, but with causes different than that of the subject accident, is mere general notice of the dangerous nature of the area and is not sufficient to prove specific notice of a specific dangerous condition. Id. General notice is only sufficient to satisfy the notice requirement for admitting evidence of prior accidents if the generally dangerous nature of a road establishes sufficient similarity between the prior accidents and the subject accident. For example, in DiFrischia v. New York Central Railroad Co., the court admitted evidence of all prior accidents at the same railroad crossing as the subject accident despite the fact that “each of the accidents was not shown to be like the one in question,” because all of the accidents involved a nighttime collision between a car and a train. 307 F.2d 473, 476 (3rd Cir. 1962). The court found that this foundation established both the generally dangerous nature of the intersection and the sufficient similarity between the prior accidents and the subject accident. DiFrischia, 307 F.2d at 476. As such, notice requirement for admission of prior accidents was satisfied. Id. at 476. The Whitman court distinguished the sufficiency of the general notice in DiFrischia from the specific notice required in Whitman when it stated that “[b]ecause all of the accidents involved nighttime collision at a railroad crossing between a car and a train, the defendant should have been on notice that the crossing was dangerous. Here, however, there is no common thread linking all 36 accidents to a malfunctioning traffic signal.” Whitman, 471 A.2d at 524. Since the plaintiff in Whitman was alleging a specific dangerous condition (a malfunctioning traffic signal), specific notice was required. Id.
While prior accidents must have sufficiently similar causes in order to satisfy the specific notice requirement, the prior accidents need not be identical to the subject accident. In Rogers v. Johnson & Johnson Products, Inc., where evidence of prior accidents due to product defects was admitted for the limited purpose of demonstrating notice, the court found no abuse of discretion despite the fact that said products were not from the same production batch and the circumstances were not identical. 585 A.2d 1004, 1007 (Pa. Super. Ct. 1990). Lockley, supra, cites this rule established by Rogers when it states that since the similarities between the prior accident and the subject accident outweighed the differences and the purpose of the evidence was limited to establishing notice and foreseeability, the substantial similarity standard was met and any differences should go not to admissibility, but rather to the weight of the evidence. Lockley, 5 A.3d at 396.
B. Summary of Pennsylvania Courts’ Application of Rules Governing When Evidence of Prior Accidents May Be Admitted
Lockley, supra, involved a claim for faulty seats in a locomotive cab that resulted in back injury. Lockley, 5 A.3d at 387. Evidence of similar claims was admissible for purposes of establishing notice and foreseeability despite the fact that the other claims were not identical (i.e. different kinds of engineers bringing claims, different areas of their back affected). Id. at 396. The court found that the differences between the prior claims and the subject claim were outweighed by the similarities, and sufficient similarity was thus established. Id. The court added that where such differences are not adequate to foreclose sufficient similarity, they “go to the weight of the evidence and not its admissibility.” Id.
In Ringelheim, supra, the plaintiff slipped and fell in defendant’s store. Ringelheim, 330 Pa. at 70. The court granted a new trial because the trial court did not allow plaintiff’s counsel to ask a witness if anyone else had slipped at the same place on the same day. Id. The court reasoned that “any evidence logically probative of [whether the floor was safe or dangerous] would, of course, be admissible, and no more relevant or convincing testimony for the purpose could be offered than proof that other persons had fallen at the same place on the same day.” Id. at 71-72.
The plaintiff in Whitman, supra was injured in a car accident resulting from an intersection’s overhead traffic signal turning green in two directions at the same time. Whitman, 471 A.2d at 522. The plaintiff was not permitted to introduce evidence of 35 prior accidents at the same intersection because the circumstances surrounding said accidents varied and were “wholly foreign to the cause at issue and rais[ed] many more collateral issues for the jury to consider.” Id. at 524. The court added that “[o]ther accidents occurring at the same intersection from different causes do not necessarily constitute ‘similar accidents occurring…under the same or similar circumstances….’” Id. at 523, quoting Stormer, 401 Pa. at 466. Evidence of said accidents was enough to establish general notice of the “generally dangerous nature of the intersection;” however, the court found that such evidence was not sufficient to establish the requisite specific notice of the specific defective condition alleged (a malfunctioning traffic light). Id. at 524.
In Mendenhall v. Commonwealth, Dep’t of Transp., the court reached a conclusion similar to that of the Whitman court. The defendant fell asleep at the wheel, crossed the center line while navigating an “S” curve, and collided with the plaintiff. 537 A.2d 951, 953 (Pa. Commw. Ct. 1988). The plaintiff sued PennDOT alleging that it was “negligent in failing to post adequate signs along the road, in failing to maintain the yellow median line in the road, and in failing to keep the foliage cut back so that the existing curve sign could be seen clearly by passing motor vehicle operators;” however, the court found that PennDOT’s negligence “was not a substantial factor in causing the accident.” Mendenhall, 537 A.2d at 953. The court did not allow testimony regarding all 29 of the proffered prior accidents in the “S” curve, stating that “such proof arguably relates more to an assertion of a generally dangerous nature of the curve, rather than to an assertion of any particular dangerous condition at the curve,” as not all of the 29 accidents occurred at the same part of the “S” curve, in the same lane, or under the same weather conditions. Id. at 954 (emphasis added).
Rogers, supra, centered around an allegedly defective plaster cast on the plaintiff’s leg which caused burns. Rogers, 585 A.2d at 1006. The court permitted the plaintiff to admit a report evidencing instances of similar malfunctions despite the fact that “the products were not from the same production batch and the circumstances surrounding the…injuries may not have been identical to those concerning [plaintiff].” Id. at 1007. The court added that “the trial court reasonably could conclude that the similarities outweighed the differences for the purpose of establishing whether [the defendant] had notice of the malfunctions.” Id. at 1007.
C. Types of Evidence Admissible to Show Prior Accidents
Evidence of prior accidents is not always admissible, but when a moving party has met the requisite burden of showing admissibility, that party then has to comply with requirements regarding what type of evidence of said accidents is admissible. There are several forms of evidence that are available to show occurrences of prior accidents; however, only certain types of evidence are admissible under certain circumstances.
In Wyke v. Ward, the court found that letters from “various individuals to DOT complaining of the frequency of the accidents” at an intersection, and a response letter written by the Secretary of Transportation acknowledging that the subject intersection was unsafe, were evidence that should have been admitted to show notice of a dangerous condition to DOT. 474 A.2d 375, 382 (Pa. Commw. Ct. 1984). The court said that the Secretary’s letter was admissible as an admission against interest, which is a valid hearsay exception. Wyke, 474 A.2d at 382. The court added that several other items of evidence which plaintiff sought to introduce may be admissible, but it was not necessary to rule on them. Id. at 382.
Hoffmaster v. County of Allegheny involved an accident where the plaintiff’s car slipped on a patch of ice. 550 A.2d 1023, 1024 (Pa. Commw. Ct. 1988). A resident who lived next to the scene of the accident testified that water constantly built up on the road and, when cold enough, froze. Hoffmaster, 550 A.2d at 1027. Said resident also testified that an accident had occurred two or three weeks prior to the subject accident at the same spot, and that there had been ice on the road at the time of that accident as well. Id. A couple who lived on the same road (which was only 1.5 miles long) also sent a letter to the Director of the County stating that “[d]uring the winter, Spring Run Road has wet areas which ice up and create a safety hazard.” Id. The testimony was properly admitted to prove “that the prior accident had occurred at substantially the same place and under the same or similar circumstances,” and the letter was properly admitted as proof “that the Township had notice of the icy condition.” Id. at 1029.
Finally, in Wright v. Commonwealth, DOT, the plaintiff attempted to “establish that DOT was notified of the existence of [a] dangerous condition at [an] intersection” through the testimony of a Township police officer regarding a prior accident at the intersection where the subject accident occurred. 596 A.2d 1241, 1247 (Pa. Commw. Ct. 1991). In his testimony, the officer stated that “he did not personally send the [prior] accident report to DOT and that he had no knowledge when the [prior] report was sent,” so the court ruled that his testimony did not establish notice. Wright, 596 A.2d at 1247.
D. Police Reports of Prior Accidents: Admissibility
Police reports for the accident that is the subject of a given lawsuit are generally not admissible; however, police reports from prior accidents can be admissible in certain circumstances. According to Admissibility of Evidence: A Manual for Pennsylvania Trial Lawyers, “[75 Pa. Cons. Stat. §§ 3751 and 3754] bar admissibility of accident and accident reconstruction reports concerning the subject of a suit; testimony based on prior reports is admissible.” 1A Christian A. Fisanick. Pa. Admissibility of Evidence § A3 (3d ed. 2013).
In Holland v. Zelnick, the court ruled that the police report for the subject accident prepared by an officer who did not witness the accident was not admissible, nor was the officer who prepared report permitted to testify directly from the report. 478 A.2d 885, 888 (Pa. Super. Ct. 1984). The preparing officer was, however, permitted to use the report in order to refresh his memory and accordingly testify in detail about the physical damage to the vehicles in the subject accident. Holland, 478 A.2d at 888.
The court in Ariondo v. Munsey ruled that a police officer’s testimony based on prior accident reports was admissible, as the officer “testified that he was the custodian of the police department’s accident reports which had been reported to DOT,” that “the reports were made in the regular course of business,” and that “he was responsible for transmitting the reports to DOT.” 553 A.2d 94, 98 (Pa. Commw. Ct. 1989), order rev'd on other grounds, Conner v. Munsey, 533 Pa. 143 (1993). The court found that the evidence was an exception to the hearsay rule and admissible under the Uniform Business Records as Evidence Act (42 Pa.C.S. § 6108), which states in relevant part that:
[a] record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
Ariondo, 553 A.2d at 98. The court also found that 75 Pa. Cons. Stat. § 3754 did not bar admission, as the police officer’s testimony did not amount to and was not derived from an in-depth DOT investigation. Id. Additionally, the court held that 75 Pa. Cons. Stat. § 3751 only “precludes the admission of accident reports in actions for damages arising out of the accident about which the report was prepared.” Id. at 99 (emphasis in the original). As a result, the Uniform Business Records as Evidence Act works in conjunction with Pa. R. Evid. 803(6) to, under certain circumstances, admit testimony regarding police reports from prior accidents.
In Braxton v. Dep’t of Transp., police reports from prior accidents were introduced. 634 A.2d 1150, 1155 (Pa. Commw. Ct. 1993). While the accident reports referenced prior accidents that had occurred in the same place as the subject accident, the prior accidents were caused by substantially different factors. Braxton, 634 A.2d at 1155. Accordingly, the court held that the reports could not be used to establish that the defendant landowners knew or should have known that the alleged specific dangerous condition existed on their property. Id.
Finally, in Burke v. Buck Hotel, police reports from two prior accidents were admitted, but said evidence was not sufficient to provide notice of a dangerous condition to the defendant-hotel-owners who had purchased the property only six weeks before the subject accident, and more than a year after the most recent prior accident. Burke v. Buck Hotel, Inc., 742 A.2d 239, 246 (Pa. Commw. Ct. 1999).
CONCLUSION
Evidence of prior accidents is admissible if the prior accidents are sufficiently similar to the subject accident and notice can be established through the admission of said evidence. Several accidents at the same location may be sufficient to establish general notice of the generally dangerous nature of a road; however, admitting evidence of prior accidents where a specific defective/dangerous condition is alleged requires specific notice of a specific defective/dangerous condition (i.e. prior accidents in the same place due to the same causes). Letters and/or testimony from individuals complaining about prior accidents or a defective road condition, and testimony of the custodian of the police reports for prior accidents are, under certain circumstances, admissible evidence of prior accidents.
