Absence or Presence of Prior Accidents

• Library: Objections Guidebook (2022 Ed.)

Absence or Presence of Prior Accidents

· Absence of prior accidents is generally inadmissible. Evidence of similar happenings is generally inadmissible without evidence of sufficient similarity, though it may be admissible to prove notice in support of punitive damages.

· Evidence of similar happenings or evidence of the absence of similar happenings is generally inadmissible when offered to prove freedom from negligence. See Mo. Evidence Restated §416, pp. 120–30 (MoBar 6^th ed. 2021). Johnson v. Kansas City Pub. Serv. Co., 228 S.W.2d 796, 797–99 (Mo. 1950) (excluded because of “confusion”). But evidence of the absence of prior accidents may be admissible 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 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. See Mo. Evidence Restated at p. 121.

· Missouri courts have long recognized that evidence regarding the absence of other incidents is of questionable value in most circumstances and is likely to confuse the jury. Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233, 244 (Mo. App. E.D. 1987).

· For this reason, Missouri courts have long held that, as a general rule, evidence of the lack of prior incidents is inadmissible. See, e.g. Carbin v. Nat’l Super Markets, Inc., 823 S.W.2d 93, 94 (Mo. App. E.D. 1991); Luthy v. Denny’s Inc., 782 S.W.2d 661, 666 (Mo. App. W.D. 1989); Blackwell v. J.J. Newberry Co., 156 S.W.2d 14, 19 (Mo. App. E.D. 1941).

· “Evidence of other acts of defendant than those alleged for which damages are sought, both preceding as well as following the particular acts, is admissible under an issue of exemplary damages if so connected with the particular acts as tending to show defendant’s disposition, intention, or motive in the commission of the particular acts for which damages are claimed.” Charles Curry & Co. v. Hedrick, 378 S.W.2d 522, 536 (Mo. 1964); Benedict v. Northern Pipeline Construction, 44 S.W.3d 410 (Mo. App. W.D. 2001); State ex rel. Ford Motor Company v. Messina, 71 S.W.3d 602, 608 (Mo. banc 2002); Newman v. Ford Motor Co., 975 S.W.2d 147, 151 (Mo. banc 1998).

· As a general rule, “[t]o be sufficiently similar, each occurrence must: (1) be of like character; (2) occur under substantially the same circumstances; and (3) result from the same...