Evans v. State

• Decision Date: 26 January 2001
• Docket Number: No. 25473.,25473.
• Citation: 18 P.3d 227,135 Idaho 422
• Parties: Scot EVANS and Sandra Evans, husband and wife, Plaintiffs-Appellants, v. STATE of Idaho, d/b/a Lava Hot Springs Foundations, Defendant-Respondent.
• Court: Idaho Court of Appeals

18 P.3d 227

135 Idaho 422

Scot EVANS and Sandra Evans, husband and wife, Plaintiffs-Appellants, v. STATE of Idaho, d/b/a Lava Hot Springs Foundations, Defendant-Respondent.

No. 25473.

Court of Appeals of Idaho.

January 26, 2001.

Ling, Nielsen Robinson, Rupert, for appellant. Brent T. Robinson argued.

Hon. Alan G. Lance, Attorney General, Boise, and Racine, Olson, Nye, Budge & Bailey, Special Deputy Attorney General, Pocatello, for respondent. John B. Ingelstrom argued.

PERRY, Judge.

Scot Evans and Sandra Evans appeal from a judgment in favor of the State of Idaho, d/b/a Lava Hot Springs Foundations, which was entered following a jury verdict. The Evanses also appeal from the district court's denial of their motion for judgment notwithstanding the verdict and their motion for new trial. Lastly, the Evanses appeal from the district court's award to the state of certain discretionary costs. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

In August 1994, Scot Evans and Sandra Evans visited the Lava Hot Springs swimming facility. The swimming facility included three Olympic diving platforms. The highest diving platform rose ten meters above the water surface. Sandra decided to jump from the 10-meter platform. She climbed the ladder and jumped feet first. During her descent, Sandra raised her legs, hit the water in a sitting position, and sustained injuries.

In August 1995, the Evanses filed a complaint against the State of Idaho, d/b/a Lava Hot Springs Foundations. The Evanses alleged that the state was negligent in failing to warn Sandra of the risk associated with jumping from the 10-meter platform and in failing to properly supervise patrons jumping from the platform. The Evanses alleged that the state's negligence was the proximate cause of Sandra's injuries. The state filed an answer, asserting that it had not been negligent and, in the alternative, that Sandra's damages were caused by her own negligence. At the conclusion of trial, a jury found that the state was not negligent. The Evanses filed a motion for judgment notwithstanding the verdict and a motion for new trial. Both motions were denied by the district court. The district court awarded costs to the state as a matter of right in the amount of $4,993.36 and discretionary costs in the amount of $19,656.98. The Evanses appeal.

II. ANALYSIS

A. Admission of Evidence at Trial

On appeal, the Evanses argue that the district court abused its discretion in admitting certain evidence at trial. A determination of whether proffered evidence is admissible rests within the sound discretion of the trial court. Mac Tools, Inc. v. Griffin, 126 Idaho 193, 199, 879 P.2d 1126, 1132 (1994); Nettleton v. Thompson, 117 Idaho 308, 312, 787 P.2d 294, 298 (Ct.App.1990). On appeal, we will not disturb the trial court's decision to admit evidence absent an abuse of discretion. Nettleton, 117 Idaho at 312, 787 P.2d at 298.

1. Dr. Knoebel's Testimony

The Evanses argue that the district court erred in admitting the testimony of Dr. Knoebel, an expert retained by the state, that Sandra's continuing pain was a product of psychological problems. A trial court has broad discretion in admitting scientific evidence. Hanks v. Sawtelle Rentals, Inc., 133 Idaho 199, 204, 984 P.2d 122, 127 (1999). Its decision will only be disturbed on appeal when there has been a clear abuse of that discretion. Id. In the case of an incorrect ruling regarding the admission of evidence, a new trial is merited only if the error affects a substantial right of one of the parties. I.R.C.P. 61; Highland Enterprises, Inc. v. Barker, 133 Idaho 330, 345, 986 P.2d 996, 1011 (1999).

In the instant case, the jury found that there was no negligence on the part of the state which was a proximate cause of Sandra's accident. As a result, the jury did not reach the question of damages. Because Dr. Knoebel's testimony focused exclusively upon the nature of Sandra's alleged damages and not upon the issue of negligence, the admission of Dr. Knoebel's testimony could not have affected the jury's verdict. Consequently, the admission of Dr. Knoebel's testimony did not affect the substantial rights of the Evanses and may not serve as grounds for a new trial under I.R.C.P. 59(a)(7).

2. Infrequency or lack of prior accidents

The Evanses also argue that the district court erred in allowing the admission of statistical evidence of the infrequency of prior accidents occurring when patrons jumped from the 10-meter platform at the Lava Hot Springs swimming facility. The Evanses contend that the evidence was irrelevant. In response, the state contends that they were properly allowed to introduce the evidence because the district court had allowed the Evanses to introduce evidence of prior accidents.¹ Idaho Rule of Evidence 402 provides that all "relevant evidence is admissible except as otherwise provided by these rules or by other rules applicable in the courts of this state." Evidence of the lack of prior accidents may be relevant to show: "(1) absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger." MCCORMICK ON EVIDENCE, Vol. 1, § 200, at 710 (5th ed.1999) (footnotes omitted). Furthermore, evidence of the lack of prior accidents may be admitted in order to provide context to previously admitted evidence of prior accidents:

One might think that if proof of similar accidents is admissible in the judge's discretion to show that a particular condition or defect exists, or that injury sued for was caused in a certain way, or that a situation is dangerous, or that defendant knew or should have known of the danger, then evidence of the absence of accidents during a period of similar exposure and experience likewise would be receivable to show that these facts do not exist in the case at bar. Indeed, it would seem perverse to tell a jury that one or two persons besides the plaintiff tripped on the defendant's stairwell while withholding from them the further information that another thousand persons descended the same stair without incident.

MCCORMICK ON EVIDENCE, Vol. 1, § 200, at 708 (footnote omitted). Admitting evidence of the lack of prior accidents after evidence of prior accidents has been admitted serves to furnish the means of applying to the matter the practical test of common experience. McDonald's Corporation v. Grissom, 402 So.2d 953, 955 (Ala.1981). A knowledge of the experience of others who were, in like manner with the plaintiff, brought into contact with the alleged defective structure, may enable the jury to weigh all the evidence before them in the light of the rule that like causes operating under like conditions produce like results. Id.

In the instant case, the district court allowed the Evanses to introduce, over the state's objection, evidence of prior accidents which occurred when people jumped from the 10-meter platform. The evidence showed that there had been four or five prior accidents. The district court admitted the evidence on the ground that it was relevant to the issue of whether the state had notice of a dangerous condition.² Later during the trial, the state sought to introduce statistical evidence tending to show that the number of prior accidents was extremely low when compared to the total number of patrons that visited the swimming facility and jumped from the 10-meter platform. The evidence of the lack of prior accidents provides context to the evidence of prior accidents introduced by Evanses. Furthermore, the statistical evidence regarding the lack of prior accidents is relevant to the questions of whether a dangerous condition existed at the Lava Hot Springs swimming facility and, in the alternative, whether the state had notice of the dangerous condition.

Notwithstanding its relevance, evidence of the lack of prior accidents "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." I.R.E. 403. The essential nature of evidence of the lack of prior accidents is different from evidence of the existence of prior accidents:

It is harder to prove that something did not happen than to prove that it did happen. When a witness testifies that he knows of no prior accidents, there are two possible explanations. The first is that there have been no prior accidents; the second is that there have been prior accidents but the witness does not know about them ... The response of most courts to this problem has been that testimony that a witness did not see an event (knows of no prior accidents) "has, in and of itself no probative force sufficient to prove that the event did not occur." Generally, courts hold that such negative evidence is inadmissible, unless testimony that the witness did not see the event or does not know of it is coupled with further evidence that the witness was in such a position or has sources of knowledge that if the event had occurred, he would have seen it or would have known about it.

Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 126, 700 P.2d 819, 824 (1985) (en banc) (citations omitted). Evidence of the infrequency or lack of prior accidents may also be excluded if the circumstances under which no prior accident occurred is not substantially similar to the circumstances under which the challenged accident did occur. See id. at 825; MCCORMICK ON EVIDENCE, Vol. 1, § 200, at 709. When the experience sought to be proved is so extensive as to be sure to include an adequate number of substantially similar situations, the similarity requirement should be considered satisfied. Mobbs v. Central Vermont Ry., Inc., 155 Vt. 210, 227, 583 A.2d...