Not very often. But, automatic exclusion by a Judge is not always the right legal ruling.
Usually, this topic comes up when clients ask if I can mention other similar trips or falls on the defendant’s property that occurred before our incident at an upcoming trial. The most common situation involves “another fall” involving a different person who fell on the same day — often overheard by my client from store employees.
When I try to explain that other falls and prior incidents are difficult to allow a jury to hear, I am often met with quizzical looks from my clients. I try to explain the success of being able to mention a prior slip and fall to a jury is slim (and that it might not be in our best interest).
First, in order to mention a prior incident, it takes some form of verification by the Defendant (by a witness at a deposition or written in an incident report). Next, it will take an examination of the prior fall to convince a Judge that it is relevant.
After all, it is inevitable that the defense will file a Motion in Limine seeking exclusion of this evidence. Defense counsel will argue the jury is tasked with deciding whether negligence occurred in this case alone and not be burdened with an extra deliberation in deciding whether a different occurrence has any bearing on the case. Counsel will argue the issue of whether a store owner is careless on occasion might not necessarily mean he/she was careless on another. Judges are often quick to rule in favor of exclusion.
But, an examination of Indiana law reveals perhaps these knee-jerk rulings come as a result of Plaintiffs’ counsel failing to adequately argue the issue. It is important for the plaintiff’s attorney to stress to the Judge the goal of introducing other similar acts into evidence is not to show a pattern of carelessness, but rather for another legitimate reason such as
- Notice to the Defendant (of)
- (the) Dangerousness of the area/conduct
- Feasibility (Practice Tip: It is vital to ask in depositions whether the repair/subsequent remedial measure/preventative act was “feasible” before the injury. If not, ask why not — do not define “feasible” for the defendant)
- Ownership of the area
But, it is important to remember that admission into evidence can only be done after an evidentiary foundation of “substantial similarity” can be shown. Gary Comm. School Corp. v. Boyd, 890 N.E.2d 794, 798 (Ind. App. 2008). Consequently, a trip and fall over a deteriorated parking bumper in a parking lot case probably will not lead to a ruling by a Judge that a person slipped on ice in the same parking lot a few years earlier.
Practice Tip: However, evidence of other falls over that same parking bumper might be admissible, in theory, if the trip and fall itself was similar and if the Defendant alleges either (1) it was not his duty to fix the broken bumper but rather another entity; or (2) fixing parking bumpers is too expensive or cannot be done for other reasons; or (3) Defendant did not consider it to be a dangerous defect.
In those circumstances, the Court could find that evidence of a prior trip and fall could provide probative evidence the Defendant knew the defect was dangerous to pedestrians or the Defendant controlled that area of the property.
Another vital consideration for laying the proper foundation is timing – the event must be recent enough for the Court to consider it probative (i.e., worthwhile). While there is no hard and fast rule that defines what is too far in the past, think of it like a sliding scale – the more recent, the more likely it is to come into evidence.
Practice Tip: The more similar the incident, an attorney for the injured person should argue the timing requirement to be extended. Welch v. Railroad Crossing, Inc., 488 N.E.2d 383 (Ind. App. 1983); Kelly v. Gepa Hotel Owner Indianapolis LLC, (993 N.E.2d 216, 220-21 (Ind. App. 2013) (two prior and one subsequent elevator error of the same type within one year admissible to show existence of a dangerous condition).
Even “near accidents” can be admissible (e.g., where cows were set loose on roads prior to the collision but were never actually struck).
Practice Tip: Remember, the prior incidents could conceivably open the door for the Defendant to argue that numerous other customers/patrons were present on the date of your client’s fall and did not slip or trip. Make sure your prior incident is worth this risk.
It is important to call McKibben Shaw Law when you want skilled advocacy on important issues such as admissibility of effective evidence. This includes the admissibility of prior incidents similar and recent to your case.