Similar Prior Accidents

August 13, 2009

By: David K. Jaffe

Typically, evidence of conduct of a person on another occasion or occasions may not be proved simply to show that, having done the same thing before, the person is likely to have done it on the occasion in issue, unless the acts are connected in some special way, indicating a relevancy beyond mere similarity as to some particulars.[1] There are, however, exceptions to the general rule excluding evidence of similar or comparable facts, acts, and conduct, such as where the evidence offered has some relevancy to the issues presented other than mere similarity. The issue arises as to whether evidence of prior accidents or injuries at the same place or locale as that of the accident sued upon is admissible.

Evidence of other similar accidents is admissible to prove the existence of a particular physical condition, situation, or defect,[2] or to prove notice of a dangerous character.[3] Such evidence is admissible to show that the defendant knew or should have known of the hazards created by a particular condition or danger.[4] A party attempting to offer evidence of prior accidents or evidence of the experience of others has the burden of proving that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff.[5]

Before the court admits evidence of prior occurrences, the proffering party first must establish a sufficient foundation of substantial similarity of conditions between the current and prior incidents.[6] Two factors determine whether a substantial similarity of conditions exists. One is that the place itself must have been substantially in the same condition. The other is that the use made of it must have been substantially identical in all material respects with the use which was actually involved in the case and was reasonably to be anticipated.[7] The trial court determines whether the essential preliminaries have been established, and its decision will not be reversed unless there was clear and manifest error.[8]

However, when evidence of a prior accident is offered to prove constructive notice of the particular defect, instead of the defect itself, a more relaxed standard is appropriate. Under this standard, a plaintiff attempting to introduce evidence of prior accidents must show that the circumstances of the other accidents were substantially similar to those under which the plaintiff was injured. But the requirement of substantial similarity is satisfied if the prior accidents are such as to call attention to the dangerous situation that resulted in the litigated accident.

In Ormsby v. Frankel, 255 Conn. 670 (2001), the court held that evidence of prior icing and evidence of a prior accident was admissible to prove that the defective condition existed for a long enough period of time that the defendant had constructive notice.[9] The relevant facts are as follows: On Saturday, February 20, 1993, between 2 and 3 p.m., the plaintiff was driving westbound on Route 6 in Farmington over Rattlesnake Mountain. Route 6 is a state highway and, as such, the Department of Transportation was responsible for its maintenance. The plaintiff was driving at approximately forty-five miles per hour in a forty-five mile per hour zone. In the course of her descent down Rattlesnake Mountain, she approached a left-hand curve. A Department warning sign on the side of the highway, place prior to the curve, informed drivers of the curve. Additionally, there was an advisory speed placard indicating that the recommended speed in the curve was forty miles per hour.

On February 20, 1993, the temperature was below freezing and the road was dry. The plaintiff entered the curve and encountered a large ice patch approximately 250 feet long in the westbound lane that had not been sanded or salted by the Department. The plaintiff had no warning that the ice patch was on the curve and could not see it prior to encountering it. After the plaintiff crossed the ice patch, she lost control of her car and tapped her brakes two or three times to attempt to regain control of her vehicle. Here efforts were unsuccessful and she attempted to steer to regain control. Her car fishtailed approximately 180 degrees and ended up in the eastbound lane where her vehicle collided with another vehicle driving eastbound up the hill. The plaintiff suffered serious injuries.

The plaintiff presented evidence from witnesses that the area where the accident occurred often had this particular icing condition. The defendant objected on the basis that this testimony was irrelevant to the question of whether the defendant had notice of the ice/water conditions that existed at the time of the accident. The plaintiff offered evidence not to prove actual notice of the condition which injured the plaintiff, but rather offered it on the timing aspect of constructive notice - namely, since the area was prone to icing, the defendant should be held to a shorter time period for detecting and correcting the condition. In other words, the defendant should have discovered and fixed the condition more quickly, since they knew the area was prone to icing. The trial court allowed the testimony and the Appellate Court and Supreme Court affirmed.

The defendant invoked the specific defect doctrine and relied upon cases which state that in highway defect cases, the notice required is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect is not sufficient.[10]

The Supreme Court's decision is significant in two respects. First, the Court held that the evidence of the prior icing condition was relevant to establish a more truncated time period during which the defendant should have detected the condition.[11] The plaintiff had evidence that the icy condition had existed for 2 ½ hours and the jury would need to determine if the state should have detected and remedied the condition in that time frame. Thus, the evidence was admissible for that limited purpose.

Second, the Supreme Court also considered the issue of the admissibility of the prior auto accident that had occurred one day prior. The Court used the substantially similarity test first enunciated in Hall v. Burns, 213 Conn. 446 (1990). In doing so, the Court adopted a more relaxed standard, which it referred to as an "attenuated similarity" standard, when evidence of a prior accident is offered solely for notice purposes. The Court ruled that evidence of the accident one day prior, in the same area, was admissible under its newly adopted standard.

The ruling does not affect the viability of the specific defect doctrine. On the contrary, the Court confirms its adherence to the doctrine. However, the decision is important as to the admission of relevant evidence to prove constructive notice. Evidence pertaining to conditions naturally productive of the defect may be admissible, on the issue of reasonable and constructive notice.

In Claveloux v. Downtown Racquet Club Assocs., 246 Conn. 626 (1998), the plaintiff slipped and fell on the defendant's racquetball court during a tournament. The plaintiff claimed that the defendant should have received sufficient notice of the slippery condition of its floors when it became aware of another player who had slipped and fallen on an oily substance on an adjacent court just the day before the plaintiff's fall. The previous slipping accident, however, was not sufficiently similar to the circumstances involved in the plaintiff's fall to provide the defendant with notice of a defect in the floor of the racquetball court so as to support the imposition of liability against the defendant.


[1] See generally George Blum, Admissibility of Evidence of Prior Accidents or Injuries at Same Place, 15 A.L.R.6 th 1 (2009).

[2] Hall v. Burns, 213 Conn. 446, 451 (1990). See also Colucci v. PJRs, Inc., 31 Conn. App. 757, 760 (1993).

[3] Sacks v. Connecticut Co., 109 Conn. 221, 238-39 (1929).

[4] Sacks v. Connecticut Co., 109 Conn. 221, 238-39 (1929).

[5] Hall v. Burns, 213 Conn. 446, 452 (1990).

[6] Hall v. Burns, 213 Conn. 446, 452 (1990).

[7] See Facey v. Merkle, 146 Conn. 129, 136 (1959) (use of stairway in church building turned into convalescent home not substantially similar).

[8] Hall v. Burns, 213 Conn. 446, 452 (1990). See also Shuchat v. Town of Stratford, 125 Conn. 566, 571-572 (1939) (falls on icy sidewalk several days apart, weather conditions not substantially similar).

[9] See Conn. Code of Evidence, § 4-1 Definition of Relevant Evidence. " 'Relevant evidence' means any evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence."

[10] Ormsby v. Frankel, 54 Conn. App. 98, 102 (1999).

[11] Ormsby v. Frankel, 255 Conn. 670, 680 (2001).