Simon v. Town of Kennebunkport

• Decision Date: 06 August 1980
• Citation: 417 A.2d 982
• Parties: Irene SIMON v. TOWN OF KENNEBUNKPORT.
• Court: Maine Supreme Court

Page 982

417 A.2d 982

21 A.L.R.4th 465

Irene SIMON v. TOWN OF KENNEBUNKPORT.

Supreme Judicial Court of Maine.

Argued April 29, 1980.

Decided Aug. 6, 1980.

Smith, Elliott, Wood & Nelson, P. A., Terrence D. Garmey (orally), Saco, for plaintiff.

Wilson, Steinfeld, Murrell, Barton & Lane, Charles A. Lane (orally), Portland, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ.

GLASSMAN, Justice.

On the morning of July 22, 1977, the appellant, Irene Simon, sustained a broken hip when she stumbled and fell while walking on a sidewalk along Ocean Avenue in Kennebunkport. The elderly woman filed a complaint under 23 M.R.S.A. § 3655 ¹ against the appellee, Town of Kennebunkport (Town), alleging that her injury was proximately caused by a defect in the design or construction of the sidewalk. Following a trial in the Superior Court, York County, the jury determined by special verdict that no defect in the sidewalk had proximately caused the appellant to fall, and judgment was entered for the appellee. The appellant contends that the presiding Justice erred in excluding evidence, offered to establish the defective condition of the sidewalk, that during the two years prior to the accident many other persons stumbled or fell at the location. ² We vacate the judgment.

Greg Quevillon and Anthony Cooper both operated businesses in the building in front of which the appellant fell. At trial Quevillon testified that the condition of the uneven, inclined sidewalk had not changed from the time it was constructed in 1974 or 1975 until the time of the accident in 1977. The appellant then attempted to elicit from this witness whether he had observed other persons fall at the location. The presiding Justice sustained the Town's objection, ruling that although the appellant could establish that the condition of the sidewalk had remained unchanged since its construction she could not offer evidence that other persons had fallen during this period. The appellant then represented that "if permitted to testify both Mr. Quevillon and Mr. Cooper would state that they saw nearly one person a day fall on that particular sidewalk, and . . . evidence of prior fall(s) is admissible where it goes to show a defect." Later, referring to the proposed testimony of Cooper, the appellant stated:

My offer of proof is that if permitted to testify this witness would indicate that on similar conditions of weather, and under conditions where the road was identical to that, the condition of July 22, 1979 (sic) , he saw approximately 100 people stumble or fall on that particular portion of the roadway.

As a preliminary matter, the Town challenges the sufficiency of the appellant's offer of proof. M.R.Evid. 103(a)(2) provides that unless the expected proof was apparent from the context error can be predicated on a ruling excluding evidence only if the proponent made known to the court the substance of the proffer. Id.; e. g., Banville v. Huckins, Me., 407 A.2d 294, 298 (1979). This rule not only enables the trial court to reconsider its ruling but also ensures a basis for this Court to determine on appeal whether the ruling was erroneous. E. g., State v. Rich, Me., 395 A.2d 1123, 1130 (1978), cert. denied, 444 U.S. 854, 100 S.Ct. 110, 62 L.Ed.2d 71 (1980); R. Field & P. Murray, Maine Evidence § 103.4 (1976). In the instant case, the two offers of proof, considered together, constitute a sufficient record for the purpose of determining whether the presiding Justice committed prejudicial error in excluding the evidence of similar accidents.

In a negligence action, evidence of other similar accidents or occurrences may be relevant circumstantially to show a defective or dangerous condition, notice thereof or causation on the occasion in question. The absence of other accidents or occurrences may also be probative on these issues. See generally, C. McCormick, Handbook of the Law of Evidence § 200 (2d ed. E. Cleary 1972). Nevertheless, Maine courts, with only rare exceptions, traditionally excluded such evidence on the ground that it " 'tends to draw away the minds of the jury from the point in issue ((negligence of the defendant at the time and place of the accident)), and to excite prejudice, and mislead them; and, moreover, the adverse party, having no notice of such a course of evidence, is not prepared to rebut it.' " Parker v. Portland Publishing Co., 69 Me. 173, 174 (1879), quoting 1 S. Greenleaf, Evidence § 52 (13th ed. J. May rev. 1876); e. g., Torrey v. Congress Square Hotel Co., 145 Me. 234, 240-42, 75 A.2d 451, 456-57 (1950); Stodder v. Coca-Cola Bottling Plants, Inc., 142 Me. 139, 144, 48 A.2d 622, 625 (1946); Johnson v. Maine Central Railroad, 141 Me. 38, 45-46, 38 A.2d 884, 887-88 (1944); Bremner v. Inhabitants of Newcastle, 83 Me. 415, 416, 22 A. 382, 382 (1891); Branch v. Libbey, 78 Me. 321, 322-23, 5 A. 71, 71-72 (1886) ("safety-history" evidence incompetent); Moulton v. Scruton, 39 Me. 287, 288 (1855). But see Spence v. Bath Iron Works Corp., 140 Me. 287, 292-93, 37 A.2d 174, 176 (1944) (dictum); Nadeau v. Perkins, 135 Me. 215, 217-18, 193 A. 877, 878 (1937). See also Thatcher v. Maine Central Railroad, 85 Me. 502, 509-10, 27 A. 519, 522 (1893); Crocker v. McGregor, 76 Me. 282, 283-84 (1884).

The genesis of an inflexible rule excluding other-accident evidence is commonly believed to be the early Massachusetts case of Collins v. Inhabitants of Dorchester, 60 Mass. (6 Cush.) 396 (1850), which reasoned that such evidence was largely irrelevant, involved proof of collateral facts and engendered unfair surprise. Id. at 398. The overwhelming majority of jurisdictions, including Massachusetts, see Robitaille v. Netoco Community Theatres of North Attleboro, Inc., 305 Mass. 265, 267-68, 25 N.E.2d 749, 750 (1940), have since either rejected or abandoned a positive rule of exclusion in favor of a standard of discretion. These courts hold that where the proponent can show that other accidents occurred under circumstances substantially similar to those prevailing at the time of the injury in question such evidence is admissible subject to exclusion by the trial court when the probative value of the evidence on the issues of defect, notice or causation is substantially outweighed by the danger of unfair prejudice or confusion of the issues or by consideration of undue delay. See, e. g., P. B. Mutrie Motor Transportation, Inc. v. Interchemical Corp., 378 F.2d 447, 450-51 (1st Cir. 1967) (applying Massachusetts law); Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 400-01 (5th Cir. 1965); Roundtree v. Seaboard Coast Line Railroad, 418 F.Supp. 220, 223 (M.D.Fla.1976) (reaching result under F.R.Evid. 403); Kopfinger v. Grand Central Public Market, 60 Cal.2d 852, 860, 389 P.2d 529, 534, 37 Cal.Rptr. 65, 70 (1964); Warshaw v. Rockresorts, Inc., 57 Haw. 645, 652-55, 562 P.2d 428, 434-35 (1977); Blood v. Allied Stores Corp., 62 Wash.2d 187, 189, 381 P.2d 742, 744 (1963). See generally 1 B. Jones, The Law of Evidence § 185 (5th ed. S. Gard rev. 1958); McCormick, supra, at § 200; 2 J. Wigmore, Evidence §§ 443-44 (J. Chadbourn rev. 1979); Annot., 70 A.L.R.2d 167 (1960) (collecting cases). See also Annot., 42 A.L.R.3d 780 (1972) (products liability actions).

A blanket rule of irrelevance is manifestly incompatible with modern principles of evidence. Although the introduction of other-accident evidence may carry with it the problems associated with inquiry into collateral matters, such evidence may also be highly probative on material issues of a negligence action, as illustrated by the instant case. Early cases failed to discern that admitting this evidence for its circumstantial force is not inconsistent with the fundamental principle that negligence liability is to be predicated on absence of due care under the circumstances at the time and place of injury. See, e. g., Damren v. Trask, 102 Me. 39, 46, 65 A. 513, 516 (1906). Although not rejecting prior case law, several later decisions of this Court appeared to eschew a per se rule as unnecessarily broad and to recognize that the similarity requirement, together with the trial court's discretion, adequately safeguards the proper use of this evidence. See Torrey v. Congress Square Hotel Co., supra, 145 Me. at 242, 75 A.2d at 457; Stodder v. Coca-Cola Bottling Plants, Inc., supra, 142 Me. at 144, 48 A.2d at 625; Spence v. Bath Iron Works Corp., supra, 140 Me. at 292-93, 37 A.2d at 176 (evidence of similar accidents permitted to show causation) (dictum); Nadeau v. Perkins, supra, 135 Me. at 217-18, 193 A. at 878 (allowing other-accident evidence on issue of breach of statutory duty where relevant circumstances similar). See generally Field & Murray, supra, at § 403.4.

Whatever the continued vitality following these cases of an absolute prohibition against other-accident evidence, it is clear that such a rule did not survive the adoption of our new Rules of Evidence in 1976. Because the comprehensive reformulation does not specifically bar the use of this evidence, its admissibility must be determined by reference to the general provisions governing the admission of relevant evidence. M.R.Evid. 401 defines relevancy in terms of probative value and materiality. ³ With exceptions not here pertinent, M.R.Evid. 402 provides that all relevant evidence is admissible. Although...