§63.13 Other Similar Incidents
The Case: Flax v. DiamlerChrysler Corp.¸ 272 S.W.3d 521 (Tenn. 2008) and No. M2005-01768-COA-R3-CV, 2006 WL 3813655 (Tenn. Ct. App. Dec. 27, 2007).
The Basic Facts: This products liability claim resulted in a jury verdict for the plaintiffs. There were multiple issues raised on appeal, including the decision of the trial court to permit the jury to learn of 37 other similar incidents. What is set forth below is the Court of Appeals discussion of the issue. The majority opinion of the Tennessee Supreme Court affirmed on this issue "for the reasons stated by the Court of Appeals." 272 S.W.3d at 544. Therefore, this section will summarize the court of appeals opinion on these issues. However, readers are cautioned that the issue of whether incidents after the plaintiffs' wreck should have been admitted into evidence was a subject of discussion in the concurring and dissenting opinions of Justices Clark and Koch.
The Bottom Line:
- "'Generally, the admissibility of evidence is within the sound discretion of the trial court.' Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004) (citing Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992)). 'The trial court's decision to admit or exclude evidence will be overturned on appeal only where there is an abuse of discretion.' Id. 'Under the abuse of discretion standard, a trial court's ruling 'will be upheld so long as reasonable minds can disagree as to the propriety of the decision made.''Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citing State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). 'A trial court abuses its discretion only when it 'applies an incorrect legal standard, or reaches a decision which is against logic or reasoning or that causes an injustice to the party complaining.'' Id. (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). 'The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court.' Id. (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998))." 2006 WL 3813655 at *16.
- "Admissibility of evidence of other accidents is a common issue arising in negligence and products liability cases. 1 McCormick On Evidence § 200, at 800 (Kenneth S. Broun ed., 6th Practitioner's Ed. 2006). In Tennessee, 'evidence of other accidents is admissible at trial for two purposes: (1) to show the existence of a particular dangerous condition or (2) to show the defendant's knowledge of the dangerous condition.'Stroming v. Houston's Restaurant, Inc., No. 01A-01-9304-CV-00189, 1994 WL 658542, at *2 (Tenn. Ct. App. Nov. 23, 1994) (citing John Gerber Co. v. Smith, 150 Tenn. 255, 266, 263 S.W.974, 977 (1924); Winfree v. Coca-Cola Bottling Works, 19 Tenn. App. 144, 147, 83 S.W.2d 903, 905 (1935); Ellis v. Memphis Cotton Oil Co., 3 Tenn. Civ. App. (Higgins) 642, 650 (1913)). Cases in Tennessee have also held that accidents occurring after the one in question may be admissible to show the dangerous nature of the product in question:
Where the dangerousness or safe character of the place, method, or appliance which is alleged to have caused the accident or injury is in issue, evidence is admissible in a proper case that other similar accidents or injuries, actual or potential, have therefore, or at the same time, or thereafter resulted at or from such place, method, or appliance.Winfree , 19 Tenn. App. at 147, 83 S.W.2d at 905 (emphasis added), Petition for Certiorari Denied by Supreme Court, June 10, 1935; see also Graham v. Cloar, 205 S.W.2d 764 (Tenn. Ct. App. 1947), Petition for Certiorari Denied by Supreme Court October 3, 1947. 'If the evidence is being offered to show the existence of a particular hazard or danger, the party seeking to use the evidence must lay a foundation establishing substantial similarity between the prior accidents and the present accident.' Stroming, 1994 WL 658542, at *2 (citing John Gerber Co. v. Smith, 150 Tenn. at 266, 263 S.W. at 977). The similarity requirement does not require that the circumstances of the accidents be identical in every particular. Id. at *3 (citing 1 McCormick On Evidence § 200, at 844 n. 4 (John W. Strong ed., 4th Practitioner's Ed. 1992). Sufficient proof of substantial similarity requires
a showing that the condition or instrumentality that caused the earlier accidents was in substantially the same condition at the time of the earlier accidents as it was at the time of the present accident. John Gerber Co. v. Smith, 150 Tenn. at 268, 263 S.W. at 977; Martin v. Miller Bros. Co., 26 Tenn. App. 110, 117, 168 S.W.2d 187, 189-90 (1942). It also requires that the condition or instrumentality shown to be the common cause of the earlier accidents must also be the condition or instrumentality of the present accident. Turgeon v. Commonwealth Edison Co., 630 N.E.2d 1318, 1322 (Ill. App. Ct. 1994).Id. at *3. 'The sufficiency of the showing of similarity of conditions is primarily a matter for the discretion of the trial judge.'Barrett v. Raymond Corp., No. 59, 1991 Tenn. App. LEXIS 38, at *4 (Tenn. Ct. App. Jan. 24, 1991) (citing Powers v. J. B. Michael & Co., Inc., 329 F.2d 674 (6th Cir. 1974))." Id. at *17-*18.
- "It is clear from the evidentiary history of this trial that the "condition or instrumentality" considered by the trial court in weighing substantial similarity was the collapse, or yield, of the NS seat that led to the fatal injury to young Joshua. Plaintiffs obtained through discovery a large number of documents from DCC related to hundreds of cases of failure of the NS seats involved in the Flax accident. The judge instructed Plaintiffs to narrow down the 'other similar incidents' (OSI's) to only those which could be established as substantially similar to the Flax incident, specifically as to the type of seat involved, the type of accident (rear-end collisions), the degree of injury of the parties, and the force of the collision between the vehicles involved, or 'Delta V.'" Id. at *18 (footnotes omitted).
- "We find that the trial court did not abuse its discretion in allowing into evidence the 37 accidents designated as OSI's and submitted by Plaintiffs. The record reflects that the trial court devoted a considerable amount of time to allow counsel for both parties to voice their support for or objections to this evidence. It is practically indisputable that the injuries occurring in all 37 of these cases were caused by the backward motion of minivan seats, which Plaintiffs sufficiently showed, in each case, to be substantially similar to those at issue in the Sparkmans' vehicle. Therefore, with regard to the trial court's admission of these 37 other accidents as evidence of dangerousness of the NS seat, we affirm the trial court's rulings.FN11
FN11 All 37 of the OSI's, even those occurring after the purchase of the van in 1998 and the accident in 2001, were admissible as evidence of dangerousness of the NS seat. Winfree, 19 Tenn. App. at 147, 83 S.W.2d at 905. However, we find that only 12 of the OSI's occurred prior to the purchase of the Caravan in May of 1998, and therefore only these 12 OSI's should have been admitted for the dual purpose of showing dangerousness and notice to DCC. In the next section, we discuss how the trial court's failure to provide a limiting instruction to this effect may have affected the jury in its finding of recklessness."Id.
Other Sources of Note: Mohr v. DaimlerChrysler Corp., 2008 WL 4613584 (Tenn. Ct. App. Oct. 14, 2008) (in was not an abuse of discretion to admit other similar incidents that occurred months or years after the sale of the mini-van involved in the case); Sparks v. Mena, No. E2006-02473-COA-R3-CV, 2008 WL 341441 (Tenn. Ct. App. Feb. 6, 2008) (trial court committed reversible error by not admitted other similar incidents into evidence); Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 198-99 (Tenn. Ct. App. 2008) (other similar incidents appropriately used in cross-examination of defendant's expert).