Prior Accidents Provide Notice of Danger

Most people know that standing in an open field or under a tree during a thunderstorm isn’t a good idea. Experience and observation have established that lightning will strike the tallest object in its vicinity and people use that information to avoid increased danger.  Similarly, in the law of negligence, evidence of prior accidents may sometimes be used to show that a defendant had notice of a danger such that an accident was foreseeable, and that the defendant breached a duty of care in failing to take reasonable precautions against the risk. Evidence of prior similar accidents, however, is admissible at the discretion of the trial judge only where substantial identity or similarity in the circumstances appears, and where there is little danger of unfairness, confusion or undue expenditure of time in the trial of collateral issues. Recently, the Massachusetts Appeals Court affirmed a jury verdict and award of $20 million in a wrongful death case where evidence of prior accidents played a pivotal role.

$20 Million Award in MA Wrongful Death Case

In that case, an elderly motorist lost control of his vehicle, speeding into the parking lot of a chain convenience store, crashed through the façade of the store and struck a woman killing her instantly. The woman’s husband brought a negligence action against the store arguing that his wife’s death could have been prevented by the installation of protective barriers along the walkway and at the “apex” entrance to the parking lot which permitted vehicle entry directly from the street without making a turn. At trial the judge admitted the chain’s internal report identifying 485 prior car strikes at the chain’s various stores, averaging one car strike a week over a ten-year period. The chain argued that it could not be held liable because there had been no prior car strikes at the particular store involved, and the accident was completely random and unforeseeable. The chain objected to the admission of evidence of prior car strikes at other locations.

In affirming the judgment for the plaintiff, the Appeals Court noted that the test of “substantial similarity” for the admission of evidence of prior incidents “need not replicate the exact circumstances of the plaintiff’s accident.” The court found that the “relevant risk in this case, as the judge properly framed it, was “uncontrolled vehicles hitting at or near a store entrance and endangering pedestrians due to a lack of adequate protective barriers.” The Appeals Court continued that the evidence was not presented in a way that overshadowed the trial as the 485 car strikes were contained within a single document, and the trial court judge gave limiting instructions to the jury regarding the use of the evidence. The Appeals Court concluded that the evidence was sufficient to show that the chain was aware of the risk of uncontrolled car strikes at its stores which was relevant to and supported both foreseeability and breach of duty.  The Appeals Court also found that expert testimony was properly presented to establish that the chain could have employed reasonable preventative measures to address the risk.


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