§ 9.06 SIMILAR HAPPENINGS; OTHER ACCIDENTS

• Jurisdiction: United States

§ 9.06. SIMILAR HAPPENINGS; OTHER ACCIDENTS

Litigators frequently offer similar events, including other accidents, in evidence. This usually presents a problem of circumstantial proof, and the issue becomes how probative are incidents that differ as to parties, times, places, or circumstances from the event involved in the litigation.¹⁴⁴ Rules 401 and 403 govern in this context, unless the evidence involves character.¹⁴⁵ The test is often stated as whether there is substantial similarity between the other happening and the present litigation.¹⁴⁶ Nevertheless, the issue involves a classic Rule 403 analysis: Is the probative value (which often depends on similarity) substantially outweighed by the dangers of misleading the jury and consuming too much of the court's time?¹⁴⁷

Notice. Sometimes similar occurrences, such as prior accidents, are relevant because they tend to show that a party knew or had a reasonable opportunity to know of a dangerous condition.¹⁴⁸

Dangerousness. Other incidents may also be admissible to prove the existence of a dangerous condition. The weight of authority supports admissibility — provided the former accidents occurred under substantially similar circumstances.¹⁴⁹

Additional examples of similar happenings include other claims, misrepresentations, contracts, and business transactions, as well as sales of similar property as evidence of value.¹⁵⁰

Absence of other happenings. The lack of other accidents (i.e., good safety history) may be admissible to show the absence of a dangerous condition.¹⁵¹ Establishing probative value, however, is more difficult here. That task depends on whether the relevant condition remained constant over time and, second, whether any accidents would have been reported.

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Notes:

^[144] See Kelsay v. Consolidated Rail Corp., 749 F.2d 437 (7th Cir. 1984) (evidence of prior railroad crossing accidents excluded as too remote and dissimilar); Morris, Proof of Safety History in Negligence Cases, 61 Harv. L. Rev. 205 (1948).

^[145] For example, prior accidents offered to prove a civil defendant is an incompetent driver are inadmissible character evidence. See infra § 10.08 (discussing character evidence in civil cases). "Character in issue" is different; in a negligent entrustment suit, incompetence is an element of the cause of action and must be proved. See infra § 10.09 (discussing character as an element). See also infra § 12.02 (distinguishing habit and character).

^[146] See Chism v. CNH America LLC, 638...