by Kurt Schafers
In Missouri, defendants almost always seek to preclude evidence of prior incidents involving the defendant on the basis that such evidence is irrelevant and prejudicial because the prior incidents did not occur under “substantially the same circumstances” to the incident involving the plaintiff. Is the defendant right? When is evidence of prior similar incidents admissible?
Evidence of prior occurrences similar to the one that injured a plaintiff may be admissible to establish notice to the defendant of the existence of a dangerous condition. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 446 (Mo. banc 1998). The trial court is given wide latitude in determining whether such evidence is relevant and whether the circumstances bear sufficient resemblance to those causing the injury at issue. Id. “The degree of similarity required for evidence being used to show defendant’s notice of prior similar incidents is less demanding than the degree of similarity required for a series of prior incidents being used to show the same incident occurred on the date at issue.” Id. (citing Stacy v. Truman Medical Center, 836 S.W.2d 911, 926 (Mo. banc 1992)) (emphasis added).
Where the theory of recovery is negligence, any knowledge or warning that defendant had of the type of accident in which plaintiff was injured clearly aids the jury in determining whether a reasonably careful defendant would have taken further precautions under all the facts and circumstances, which include the knowledge of defendant of prior accidents.
Benoit v. Missouri Highway and Transp. Com’n, 33 S.W.3d 663, 669-70 (Mo. App. S.D. 2000) (emphasis added).
The Missouri Supreme Court in Stacy relied on the following quote from McCormick with regard to prior similar incidents:
Since all that is required is that the previous injury or injuries be such as to call defendant’s attention to the dangerous situation that resulted in the litigated accident, the similarity in the circumstances of the accidents can be considerably less than that which is demanded when the same evidence is used for one of the other valid purposes.
Stacy, 836 S.W.2d at 926 (quoting McCormick on Evidence, § 200 at 848 (4th ed.1992)) (emphasis added).
For example, in Emery the plaintiff was injured at a Wal-Mart store when she slipped on some dog food. 976 S.W.2d at 441. One of the Wal-Mart employees testified that he passed the area where the plaintiff fell five minutes before the incident occurred and did not observe any dog food on the floor. Wal-Mart contended that the trial court erred in allowing a Wal-Mart employee to testify as to the frequency of dog food spills because there was no showing that these spills were under “substantially similar circumstances.” Id. at 446.
The Missouri Supreme Court noted that what Wal-Mart was arguing, however, was that the use of prior similar incidents could not be used to show what happened in the particular incident involved in the case before it without a strong showing of similarity. Id. However, contrary to the argument advanced by Wal-Mart, the prior spills were not used to show the way the particular spill at issue occurred and how it was handled, but rather, “the prior spills were relevant to demonstrate Wal-Mart’s notice of the problem and the procedures it implemented or could have implemented to rectify the problem.” Id. Therefore, the trial court did not abuse its discretion in allowing plaintiff to present to the jury evidence of prior spills. Id.
In sum, where a party does not seek to introduce prior incidents to show the way a particular incident at issue occurred, but rather to show that the prior incidents occurred under circumstances which called attention to, or should have called attention to, the risk at issue, the incidents are admissible. This is because such information would “clearly aid the jury in determining whether a reasonably careful defendant would have taken further precautions under all the facts and circumstances.” Benoit, 33 S.W.3d at 669-70.