§416 Proof of the Happening of a Similar Occurrence, Representation, or Transaction or the Absence Thereof

• Library: Evidence Restated Deskbook (2021 Ed.)

§416 Proof of the Happening of a Similar Occurrence, Representation, or Transaction or the Absence Thereof

A. Evidence of Similar Happenings—Generally Inadmissible. Evidence of a similar occurrence, representation, or transaction is inadmissible to prove negligence, the existence of a representation, or the existence of a contract.

B. Evidence of Similar Happenings, When Admissible:

1. Negligence and Products Liability Cases. Evidence of accidents similar to that suffered by a plaintiff may be admissible in negligence and product liability actions to:

a. prove the existence of a particular physical condition or defect;

b. show that the defect or dangerous situation caused the injury;

c. show the risk that the defendant's conduct created; and

d. prove that the defendant had notice of the danger,

if the accidents:

e. are of like character;

f. occur under substantially the same circumstances; and

g. result from the same cause.

2. Cases Involving Intent or Mental Culpability. Evidence of past actions by a defendant with others may be admissible to show motive or intent provided that they are not too remote and are substantially similar.

3. Condemnation Proceedings to Determine Value of Land. Evidence of the price for which similarly located property was sold reasonably near the time of taking is admissible to aid the trier of fact in determining the compensation to which the landowner is entitled.

C. Evidence of the Absence of Similar Happenings. Evidence of the absence of similar happenings is generally inadmissible in negligence and products liability actions. But evidence of the absence of prior accidents may be admissible in these actions to prove:

1. the absence of a defect or condition;

2. the lack of causal relationship between the plaintiff's injury and the defect or condition charged;

3. the nonexistence of an unduly dangerous condition; or

4. the lack of knowledge of or grounds to realize the danger, provided that the defendant shows:

a. no accidents occurred under conditions substantially similar to those faced by the plaintiff; and

b. an adequate number of those situations occurred to make the absence of accidents meaningful.

Notes

A. Evidence of similar happenings—generally inadmissible

Proof of the happening of a similar occurrence is inadmissible when offered to prove that the defendant negligently caused the plaintiff's injury. Darnaby v. Sundstrom, 875 S.W.2d 195, 198 (Mo. App. S.D. 1994); Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 709–11 (Mo. 1969); see also Herrera v. DiMayuga, 904 S.W.2d 490, 492–93 (Mo. App. S.D. 1995); Gingerich v. Kline, 75 S.W.3d 776, 782 (Mo. App. W.D. 2002).

The rule of exclusion of evidence of a prior happening to prove negligence is to be distinguished from proof of an earlier portion of continuing conduct leading to the occurrence in dispute. Cargill v. Armocido, 476 S.W.2d 506, 508 (Mo. 1972) (in an action for wrongful death, testimony that the decedent/motorcycle driver left a cafe parking lot five to ten minutes before the collision without turning on his motorcycle's lights, which was corroborated by the testimony of the defendant that "I did not see him * * * and he had no lights," was properly admitted as "sufficiently connected with the collision by the testimony of defendant and other evidence"); Stapleton v. Griewe, 602 S.W.2d 810 (Mo. App. W.D. 1980) (testimony by a police officer that the officer was pursuing the plaintiff's speeding dune buggy and that the plaintiff failed to stop for the officer's red light and siren was erroneously excluded because the testimony supported the inference that the speed of the plaintiff continued to the collision).

The negative considerations commonly associated with this proof, which may outweigh its probative force on the issue for which it is offered, include introduction of collateral matters, McComb v. Vaughn, 218 S.W.2d 548, 552–53 (Mo. 1949), and confusion of issues, Benner v. Terminal R.R. Ass'n of St. Louis, 156 S.W.2d 657, 663 (Mo. 1941).

Evidence of the happening of a similar representation is not admissible to prove that a disputed representation was made. Bailey-Ball-Pumphrey Co. v. German, 247 S.W. 483, 484 (Mo. App. S.D. 1923) (on a counterclaim for damages for failure of the plaintiff to sell cotton as directed, it was error to admit evidence that others had been induced by an agent of the plaintiff to ship their cotton to the plaintiff and to detail statements made by that agent to those other parties in making the solicitation because they had no connection with the transaction between the plaintiff and the defendant). Similarly, evidence of a similar transaction is not admissible to prove that a disputed contract was made. In re Estate of Kling, 736 S.W.2d 65, 68 (Mo. App. E.D. 1987) (there was no error excluding evidence of the form of ownership of other property owned by the decedent and the decedent's brother to show that the parties intended a security arrangement in an action by an estate to establish a resulting trust on real property); Tracy v. McKinney, 82 Mo. App. 506 (W.D. 1900) (in an action for conversion involving underpayment for produce consigned to the defendant, it was error for the court to admit in evidence testimony that the plaintiff "had trouble with the defendant, in other transactions at other times [which were] wholly disconnected with the case on trial"); see also Ullrich v. CADCO, Inc., 244 S.W.3d 772, 780 (Mo. App. E.D. 2008).

But prior misrepresentations may be admissible in a criminal prosecution for crimes involving fraud or misrepresentation when relevant to an element of the crime. See State v. Neal, 169 S.W.2d 686, 695–96 (Mo. 1943) ("[E]vidence of prior confidence games practiced on third parties [is admissible] in a prosecution . . . for obtaining money under false pretenses [and] where there is substantial . . . similarity in the facts, the evidence would support an inference of fraudulent motive or intent, common scheme, etc. [even if] no relationship exists . . . between [the] two offenses."); see also §404.B, supra. They may also be admissible in a civil case when relevant to intent or mental culpability—see Cases Involving Intent or Mental Culpability below.

B. Evidence of similar happenings, when admissible

A trial court has wide discretion to determine whether or not "similar occurrences" evidence is admissible. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 446 (Mo. banc 1998). If admitted, and an abuse of discretion is raised on appeal, the review "is limited to a finding that the trial court first satisfied itself that the evidence was relevant to an issue of the case and that the occurrences bore sufficient resemblance to the injury-causing incident, while weighing the possibility of undue prejudice or confusion of issues." Pierce v. Platte-Clay Elec. Coop., Inc., 769 S.W.2d 769, 774 (Mo. banc 1989); see also State ex rel. Malan v. Huesemann, 942 S.W.2d 424, 431 (Mo. App. W.D. 1997).

1. Negligence and product liability cases

Evidence of accidents similar to that suffered by a plaintiff may be admitted in negligence and products liability actions. Stokes v. Nat'l Presto Indus., Inc., 168 S.W.3d 481, 484 (Mo. App. W.D. 2005) (products liability action against a manufacturer of a deep fryer for injuries that a minor child received); Benoit v. Mo. Highway & Transp. Comm'n, 33 S.W.3d 663, 669 (Mo. App. S.D. 2000) (negligence action for not maintaining a public road in a reasonably safe condition for travelers). The key element is similarity of the incidents—the accident the plaintiff was involved in and the previous incident "must be sufficiently close to avoid undue...