Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285
Accident reports can be admitted, if the accident is substantially similar, which proves to the jury that you don’t mind injuring people.
In this case, the plaintiff as an adult, was using a ski area alpine slide when his sled left the track causing him injury. He sued for his injuries. The ski area,
A motion in limine is a motion where one party asks the court to exclude testimony or statements being proffered by the other party. Here the Ski area was attempting to have prior reports from accidents on the alpine slide kept out of the trial. The ski area and the plaintiff were also attempting to restrict or prohibit other testimony and exhibits also.
One of the first issues was the background and history of the plaintiff. The plaintiff was trying to prevent the defendant from brining in the issue that the plaintiff had been convicted of mail fraud. An issue like this is based on whether the felony conviction is a conviction for dishonesty or fraud. Here it was a felony conviction for dishonesty. A felony normally cannot be brought in, absent special circumstances if the conviction is greater than ten (10) years old. Although the plaintiff’s conviction was greater than ten years old, because of the type of conviction, the judge thought it was relevant and allowed the conviction to be used at trial.
The next issue was the amount of medical bills incurred by the plaintiff. The plaintiffs’ medical bills were paid by Medicaid. As such, those bills when paid were discounted substantially. The plaintiff wanted to claim the medical bills were the amount prior to the Medicaid discount. Here the judge found that the full value of the medical bills was to be admitted not the discounted amount paid by Medicaid.
The value of the medical bills is always an important point. The jury usually bases its damages as a function of the medical bills.
The defendant wanted to exclude expert testimony of the plaintiff’s expert witness about warning signs or the inadequacy thereof. The plaintiff’s expert had only mentioned the signs in one sentence of his report and included photographs of the signs in his report. An expert witness report must contain a complete statement of the opinions he or she will express and the basis or the reasons for those opinions. The defense argued the one sentence was not enough to be a complete statement of the opinion. However, the court found it to be enough and will allow the testimony of the expert about the inadequacy of the signage into the trial.
The final argument was the plaintiff wanted to admit into evidence the accident reports of the 22 similar prior accidents. Six of the reports came from the New Hampshire Department of Safety, and 15 were from Attitash itself. One of the reports was based on an observation of the plaintiff’s expert witness when he was at the site investigating the scene.
For an accident report to be admitted into trial the report must be substantially similar to the accident at issue.
Evidence of prior accidents is admissible . . . only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar
The court found that four of the reports would be admitted of the six filed with the state and the 15 kept by the defendant. Those six were substantially similar to the accident that injured the plaintiff. Here, that similarity was the sled leaving the track on a curve.
The court found the following four reports significant and similar.
· the accident on July 12, 2005 (where the rider “came through [the] dip, came to next set of banks, came out of track”);
· the accident on July 23, 2005 (where the “sled came off track” near a bank);
· the accident on August 3, 2005 (where the rider “hit the curve, jumped the track”); and
· the accident on July 16, 2006 (where the rider “came from a right turn into a left turn and his cart flew off”).
The court also agreed to allow the report of the plaintiff’s expert witness of the accident he observed.
The issue then becomes what does this prove?
I believe it proves that it proves to the jury that the defendant has a dangerous track. The jury will see four reports from injuries substantially similar to the one the plaintiff is complaining about. How else could you look at these reports, except as proof that the track was dangerous AND that the defendant had done nothing to correct the problems or make the track safe.
Here were accidents for five years prior to the plaintiff’s accident and one, the expert witness one, occurring after the injury that showed there was a problem.
No matter, how much your employees and expert witness argue that the track is not dangerous, the jury is going to be looking at reports, written documents, prepared by you the defendant, saying the exact opposite.
So Now What?
Do you not create accident reports. No, you must keep records of problems, until they are fixed or used in litigation. However the reason for the reports is critical. If you are keeping them to track accidents, you are doing it for the wrong reason. You use them to do two things and two things only.
· Provide information in case there is a need such as state or federal investigation or litigation.
· To solve problems.
1. Any accident report must be solely that, the basic facts, who, what, where, when; never ever, ever a why.
Accident reports should never have speculation or opinion in them.
2. You must do something with the information you gather on accident reports. You cannot just collect them. If you notice a trend or locations fix it.
If you can’t fix it, put up a sign, put it in the waiver, instruct the people about it and tell them they will get hurt if they don’t pay attention.
Below is the accident report used by a major ski area. If you look, the information collected is done so to gather information and prevent litigation.
Nothing more than the absolute essentials is captured. These are 5 X 7 cards. The information on the form is 100% from the injured party. No information is put on the card by the patrollers unless it is direct information acquired by the patroller such as the release number setting on the skis, etc.
If there are witnesses then there are 5 X 7 cards for them to complete. There was also a form if a ski school student was injured. If the accident was a life changing incident, major trauma then there were more forms. But for 99% of the accidents, the entire report fit in a patroller’s pocket.
If the injured party cannot fill out the card, then the patroller asks the questions and writes down what the injured party says.
No opinion, no estimates, no guesses, just the facts. (Remember Dragnet the TV show from the 60s.)
Then, once you have the information it must be used. Where are the problems, can we fix the problems, should we warn people about the problems? What can we do to prevent injuries, and if we can’t can we warn people they don’t get injured?
If not, those reports will show up in trial, and probably not to help you.
For an article about bad accident reports see Be Afraid, be very afraid of pre-printed forms for your recreation business.
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