Evidence of Prior Accidents/Incidents in Premises Defect Cases

James D. Walker, Jr.¹

In premises defect negligence cases where there is an issue as to whether the defendant had notice of a dangerous condition, or where there is a question as to the foreseeability of a behavior or condition resulting in harm, evidence of prior similar accidents and occurrences involving the defendant is admissible.

I. Introduction

Apart from evidence that a civil defendant altered records or lied under oath, there may be no more damaging evidence to a defendant in a negligence trial than evidence of prior accidents involving the same defendant occurring under the same or similar circumstances as the litigated accident. In limine motions by civil defendants invariably request that all evidence of prior accident(s)/incident(s) involving the defendant be excluded at trial under the grounds such evidence is irrelevant and prejudicial. However, under long-standing Missouri law, evidence of a prior accident(s) is admissible at trial in a premises defect case provided the prior accident (1) is “an accident of like character”; (2) occurred under substantially the same circumstances; and (3) “result[ed] from the same cause.”² If the prior incidents meet these criteria, they are considered “substantially similar” and therefore admissible.

The purpose of allowing evidence of prior accidents under these circumstances is to show notice to the defendant of the existence of a dangerous condition or situation³ but not to show that because the defendant may have been negligent on prior occasions that the defendant must have also been negligent in the litigated case.⁴ The evidence is also not admissible for showing how the litigated accident occurred.⁵ The evidence may also be admitted to show whether it was foreseeable to the defendant that a condition or behavior was, in fact, dangerous, even if the prior incident occurred as long as 19 years before the litigated incident.⁶ Since evidence of prior accidents is not being introduced to show how the litigated accident occurred, the need for similarity between the prior accidents and the litigated accident is lessened. Just how much “lessened” is the difficult question presented to trial judges, and unfortunately this difficulty has resulted in the tendency of some trial courts, apparently concerned that evidence of prior accidents will be too dramatic or prejudicial, to require that the prior accidents and the litigated accident be nearly identical. In so doing, the court conducts an inventory of details comparing the previous incident to the litigated one and then decides whether the salient details of the accidents “match up” enough to warrant admissibility at trial. This is a cumbersome and, as will be discussed, misguided method of determining admissibility.

This article will briefly survey Missouri cases involving evidence of prior accidents in premises defect negligence cases, and will propose a simple test that a trial judge can use in deciding whether to admit evidence of prior accidents on the issue of notice or foreseeability of harm: a test that focuses the court on the defect or condition common to the previous accident and the litigated accident and not on the details of the accidents.

II. A Brief History

In 1916 a woman named Amelia Hebenheimer was walking along Olive Street in St. Louis and stepped on a “coalhole cover”⁷ which was not securely fastened, causing her to sustain injuries when she fell into the opening. The trial court admitted evidence of prior incidents involving pedestrians who stepped on the same cover and had it “slip and tilt.”⁸ The appellate court, reversing a prior decision, approved admission of the prior incidents since they tended “to show the existence of a dangerous condition.”⁹ Though the decision did not specifically reference the issue of “notice,” it undoubtedly was grounded in it, since the prior accidents were not being admitted to show how the litigated accident occurred, as there could be no doubt, based on the plaintiff’s presumed trial testimony, how the fall occurred.

The subsequent appellate trend was to approve admission of prior accidents. In a 1934 case in which the positioning of a set of scales in a restaurant passageway caused customers to trip over them,¹⁰ the appellate court stated that evidence of prior incidents of customers tripping on the ill-placed scales was admissible to “show notice of negligent conditions. . . .”¹¹ In a 1935 “slip-and-fall” case occurring in a department store “toilet room,” the court approved testimony of the “maid in charge of the rest-room” that other customers had also slipped and fallen in the wash-room.¹² In a later slip-and-fall case occurring at a grocery store entrance, the Court approved testimony at trial that the manager at the scene told the injured plaintiff, “You are the third person that fell there today.”¹³

III. Analyis Of Recent Case Law

In order to be admissible on the issue of notice to the defendant, the prior accidents must be similar enough to the case at trial to “call defendant’s attention to the dangerous situation that resulted in the litigated accident. . . .”¹⁴ In 1970, the Supreme Court of Missouri squarely permitted evidence of previous close calls at a railroad crossing due to an inaudible warning bell at the crossing.¹⁵ The Court, citing a previous case, stated: “The conditions [existing in the previous close calls] surrounding this crossing were such that (defendant) was bound to know that they were unusual and that the roadway was thereby rendered more dangerous. . . .”¹⁶ Later, in Pierce v. Platte-Clay Elec. Coop., Inc.,¹⁷ the Supreme Court of Missouri upheld the trial court’s admission of prior incidents involving contact between farm machinery and unmarked guy wires maintained by defendant, stating that the “evidence was relevant to show that appellant was aware of the risk of farm machinery contacting unmarked guy wires and that such an event could foreseeably result in an unreasonable risk of injury.”¹⁸ In 1992, the Supreme Court of Missouri, in Stacy v. Truman Medical Center,¹⁹ took a similarly expansive view (and one consistent with previous Missouri cases) regarding the admissibility of prior accidents in negligence cases. In that case, two patients were fatally burned in a fire starting in the patients’ room and caused by patient smoking. The wrongful death actions brought on behalf of the two patients alleged that the medical center did not provide smoke detectors, allowed the patients to smoke in their rooms without providing ashtrays (the fire started in a wastebasket), and failed to have in place adequate procedures to deal with fires occurring in patients’ rooms. There had been, less than two weeks before the fatal fire, another fire caused by a patient smoking occurring on the same floor in a room with no smoke detectors. The Court affirmed the trial court’s admission of evidence of the previous fire and, citing McCormick on Evidence, emphasized that the previous incident’s similarity to the litigated accident only be “such as to call defendant’s attention to the dangerous situation that resulted in the litigated accident.”²⁰

One year later, the Supreme Court of Missouri upheld the trial court’s admission of evidence of three prior accidents (out of a possible 43) occurring on an allegedly dangerous stretch of state highway in Richardson v. State Highway and Transportation Commission,²¹ reasoning that the court had been careful to ensure that the previous accidents were “substantially similar” to the litigated accident and that the court had correctly “weigh[ed] the possibility of undue prejudice and confusion of issues.”²² The Court’s concern with “undue prejudice” and “confusion of issues” here illustrates the trial court’s problem when it tries to soften the impact of prior incidents: It does not give primacy to the jury’s need to have as much relevant information as possible to determine the facts. In a premises defect case the “fact” of the defendant’s knowledge of a dangerous condition, as set forth in MAI, is directly before the jury.²³ Since the trial defendant invariably denies knowledge of the dangerous condition, it is illogical that providing more evidence to the jury of defendant’s knowledge (evidence of previous similar accidents on the defendant’s premises) runs the risk of “confusion of the issues.” Certainly, a jury is reasonably able to discern previous accidents from the accident they are deciding, or else how can it ever be justified admitting evidence of previous incidents? Similarly, should the focus be on the “prejudice” to a party when the pivotal question is defendant’s knowledge of a dangerous condition to be answered (or not answered as the case may be) by courtroom testimony of previous similar incidents? Although such evidence may certainly be damaging to the defendant, damaging testimony is never ipso facto prohibited at trial. Since evidence of prior incidents may be crucial to the jury’s determination of whether the defendant had notice, the trial court should be inclined to admit the evidence provided it meets the threshold requirement of being “substantially similar.”

IV. Substantially Similar: A Proposed Test

Of course, the difficulty for the trial court is deciding whether the prior incidents are substantially similar to the case at trial. Notice of one dangerous condition does not necessarily imply notice of another dangerous condition. Since the focus at trial is on the knowledge (or lack thereof) of the defendant of a dangerous condition that may have caused damage to the plaintiff, the trial court should focus on the nexus between the previous accidents and the later injury to the plaintiff at trial. Following this suggestion, a simple test for admissibility of prior accidents/incidents could be: Is it reasonably likely that the litigated accident would have been prevented if the defendant had taken appropriate remedial actions when the defendant learned about the previous accident(s)/incident(s)? If the answer is yes, then evidence of the previous accident(s)/incident(s) should be admitted. The Court in Stacy, without explicitly adopting such a test, highlighted the value to the jury of having evidence of previous accidents admitted, stating “knowledge or warning that defendant had of the type of accident in which plaintiff was injured clearly aids the jury in determining whether a reasonably careful defendant would have taken further precautions under all the facts and circumstances, which include the knowledge of defendant of prior accidents.”²⁴

Some recent Missouri cases have further clarified the meaning of “substantially similar” by focusing on the defect and not on the details, thereby moving closer to a de facto adoption of the above-proposed test. In Emery v. Wal-Mart Stores, Inc.,²⁵ the Supreme Court of Missouri more precisely defined the purpose of admitting evidence of prior incidents, rightly sidestepping the issue of prejudice to the defendant and focusing instead on the question of notice to the defendant of a dangerous condition. In Emery, a Wal-Mart customer was injured when he fell due to spilled dog food in the pet food aisle. The trial court admitted evidence of prior incidents of pet food spills (not actual injuries) occurring in the pet food aisles of the store. The evidence showed that pet food spills due to torn bags occurred fairly frequently and this dangerous condition was known to Wal-Mart. On appeal, Wal-Mart argued that evidence of the prior “dog food spills” was not relevant as to how the litigated spill occurred or whether Wal-Mart had knowledge of the litigated spill or had time to clean it up. The Supreme Court upheld the trial court’s admission of the prior spills, pointing out that the prior pet food spills were not admitted to show how the litigated incident occurred or how long food had been on the floor, but rather to “demonstrate Wal-Mart’s notice of the problem and the procedures it implemented or could have implemented to rectify the problem.”²⁶ The Emery Court did not address the question of whether the prior incidents were substantially similar to the litigated claim, stating only that the degree of similarity required for admission of previous incidents was “less demanding” than that required to prove exactly how the litigated accident occurred.²⁷ Thus, if Wal-Mart had adopted and implemented effective pet food spill clean up procedures, it is reasonable to assume that the litigated injury would have been prevented. The “substantial similarity” requirement was met.

Similarly, in Lohmann v. Norfolk & Western Railway Co.,²⁸ a railroad crossing case, the Western District affirmed the trial court’s admission of evidence of prior signal light malfunctions and accidents at the litigated railroad crossing because the previous incidents “were sufficiently similar to the [litigated] accident to have probative value on the issue of the dangerousness of the crossing, and on the issue of notice of the high degree of danger associated with the crossing.”²⁹ In effect, the Western District in Lohmann held that if the defendant railroad had taken corrective action after the previous incidents (involving malfunctioning crossing gate lights and “visual pollution” at the crossing due to glare from a nearby building and parking lot³⁰) then it was reasonably likely that the litigated accident would have been prevented. The previous incidents therefore met the “substantially similar” threshold and were correctly admitted.

V. Conclusion

Evidence of prior accidents/incidents, because of its potentially dramatic and persuasive effect, must be thoughtfully considered by the trial court. At the same time some trial judges, recalling the evidentiary maxim that evidence of prior negligence does not prove current negligence, instinctively tend to reject such evidence as being “too prejudicial.” But since the jury must decide whether the defendant had notice of a dangerous condition and that a repeat accident was therefore foreseeable, evidence of prior accidents and incidents may be the best or only evidence the jury has on the question of notice. The incidents must, of course, be “substantially similar” to the incident before the jury. There are literally an infinite number of evidentiary details that differ from one incident to another. To the extent the trial court focuses primarily on these differences or similarities to justify admitting or not admitting evidence of previous incidents, the fact-finder may be ill-served.³¹ Rather, the trial court should, as the trend of Missouri cases suggests, focus not on details of the accidents but on the common defect or condition. In doing this, the court determines whether the litigated accident would reasonably have been prevented had the defendant taken appropriate remedial action after the previous accident/incident. This approach to the admission of evidence of previous accidents/incidents will focus and simplify the decision making of the trial court, furnish a degree of predictability to the parties and, most importantly, help the jury do its job.

Footnotes

¹ James D. Walker, Jr. is a 1981 graduate of the University of Missouri-Kansas City School of law. He is in private practice in Kansas City.

² Hess v. Chicago, Rock Island & Pacific R.R., 479 S.W.2d 425, 431 (Mo. 1972).

³ Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 927 (Mo. banc 1992).

⁴ State ex rel. Malan v. Huesemann, 942 S.W.2d 424, 430 (Mo. App. W.D. 1997).

⁵ Stacy at 925.

⁶ Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151 (Mo. banc 2000).

⁷ Hebenheimer v. City of St. Louis, 189 S.W. 1180, 1181 (Mo. 1916). A coalhole was a covered opening, similar to a man-hole cover, where deliveries of coal were deposited for use by nearby residences and businesses.

⁸ Id.

⁹ Hebenheimer v. City of St. Louis, 189 S.W. 1180, 1183 (Mo. 1916), reversing Goble v. Kansas City, 50 S.W. 84 (Mo. 1899).

¹⁰ Mick v. John R. Thompson Co., 77 S.W.2d 470 (Mo. App. E.D. 1934)

¹¹ Id. at 475.

¹² Dewey v. Kline’s, Inc., 86 S.W.2d 622 (Mo. App. W.D. 1935).

¹³ Corley v. Kroger Grocery and Baking Co., 193 S.W.2d 897, 898 (Mo. 1946).

¹⁴ McCormick on Evidence, § 200 at 848 (4th ed. 1992) cited in Stacy v. Truman Medical Ctr., 836 S.W.2d 911 (Mo. banc 1992).

¹⁵ Grothe v. St. Louis-San Francisco Railway Co., 460 S.W.2d 711 (Mo. 1970).

¹⁶ Id. at 715, citing Honeycutt v. Missouri Pac. R.R. Co., 440 S.W.2d 481, 485 (Mo. 1969).

¹⁷ Pierce v. Platte-Clay Elec. Coop., Inc., 769 S.W.2d 769 (Mo. banc 1989).

¹⁸ 769 S.W.2d at 774.

¹⁹ 836 S.W.2d 911 (Mo. banc 1992).

²⁰ Id. at 926. The primary “other” valid purpose for allowing admission of evidence of prior accidents, and requiring a high degree of similarity among the accidents and the litigated accident, is when the series of previous accidents are used to show exactly how the litigated accident occurred. Use of this type of evidence is relatively rare in negligence cases. See generally, McCormick on Evidence, 5th ed. § 200 (1999).

²¹ 863 S.W.2d 876 (Mo. banc 1993).

²² Id. at 881.

²³ See MAI 22.03 (6th Ed.) “Second, defendant knew or by using ordinary care could have known of this condition. . . .”

²⁴ 836 S.W.2d at 926.

²⁵ 976 S.W.2d 439 (Mo. banc 1998).

²⁶ Id. at 446.

²⁷ Id. at 446, citing Stacy v. Truman Medical Ctr., 836 S.W. 2d at 926.

²⁸ 948 S.W.2d 659 (Mo. App. W.D. 1997).

²⁹ 948 S.W. 2d at 669.

³⁰ 948 S.W. 2d at 668.