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Kaeo v. Davis5/14/1986
ssessment by the trier of fact along with the evidence of drinking by the driver. The trial judge's decision not to permit the jury to hear such evidence was an abuse of discretion amounting to error, and we cannot say it had no effect upon the outcome of the trial. Since our conclusion compels a retrial of the action, we proceed to the issue raised by the plaintiff in her cross-appeal.
III.
The issue is whether evidence of other accidents is admissible in the trial of a negligence action, one we have encountered before. See American Broadcasting Cos. v. Kenai Air of Hawaii, Inc., 67 Haw. 219, 686 P.2d 1 (1984); Warshaw v. Rockresorts, Inc., 57 Haw. 645, 562 P.2d 428 (1977). The plaintiff urges the trial judge's exclusion of accident reports containing evidence of several prior accidents occurring near the site of the mishap in which she suffered injuries was error, and we agree.
A.
Evidence of other accidents may be "highly probative on material issues of a negligence action." Simon v. Town of Kennebunkport, 417 A.2d 982, 985 (Maine 1980). " vidence of other similar accidents or occurrences may be relevant circumstantially to show a defective or dangerous condition, notice thereof or causation on the occasion in question." Id. at 984-85. But "the introduction of other-accident evidence may carry with it the problems associated with inquiry into collateral matters . . . ." Id. at 985. To minimize these problems we have cautioned our trial courts that:
efore evidence of previous . . . [accidents] may be admitted on the issue of whether or not the condition as it existed was in fact a
dangerous one, it just first be shown [by the proponent of the evidence] that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question.
Warshaw v. Rockresorts, Inc., 57 Haw. at 652, 562 P.2d at 434 (quoting Laird v. T.W. Mather, Inc., 51 Cal. 2d 210, 220, 331 P.2d 617, 623 (1958) (modifications in original). But we recognize that "when the purpose of the offered evidence is to show notice," the required similarity in circumstances is considerably less than that demanded when the object is to show a defective or dangerous condition or causation, "since all that is required here is that the previous . . . [accident] should be such as to attract the defendant's attention to the dangerous situation which resulted in the litigated accident." Id.
Yet "even when sufficient similarity is shown, the admission of evidence of prior similar accidents is [still] within the discretion of a trial court." Id. (citations omitted). The evidence, of course, "may be excluded if the danger of unfair surprise, prejudice, confusion of the issues or the consideration of undue consumption of time is disproportionate to value." Id. at 652, 562 P.2d at 434 (citations omitted); see Haw. R. Evid. 403.
B.
The plaintiff offered the evidence of prior accidents, consisting of four accident reports, to show the existence of a dangerous condition, the City's knowledge of the condition, and as a foundation for testimony by her expert witness. The purpose for which the evidence is offered "is important in determining whether the proof will be admitted and how strictly the requirement of similarity of conditions will be applied." E. Cleary, supra, § 200, at 587 (footnotes omitted). The evidence may be
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