§ 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.¹⁴⁵ Rules 401 and 403 govern in this context, unless the evidence involves character.¹⁴⁶ The test is often stated as whether there is substantial similarity between the other happening and the present litigation.¹⁴⁷ 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?¹⁴⁸

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.¹⁴⁹

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.¹⁵⁰

Additional examples of similar happenings include other claims, misrepresent ations, contracts, and business transactions, as well as sales of similar property as evidence of value.¹⁵¹

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.¹⁵² 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.

--------

Notes:

^[145] 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).

^[146] 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).

^[147] See Chism v. CNH America LLC, 638 F.3d 637, 642 (8th Cir. 2011) ("Most of the other incidents Chism proffered...