Simon v. Town of Kennebunkport, 417 A.2d 982 (1980)

Facts: Mrs. Simon, a tourist fell on an allegedly defective sidewalk and broke her hip.  She sought to introduce the testimony of two local business owners, both operated a store in front of the area at issue.   One testified as to the sidewalk’s condition from the time of construction until the pl fell, but when the Pl attempted to elicit whether he observed others fall there the judge ruled that she could not offer evidence that other persons had fallen during this period.

Issue: Whether the ruling to exclude the witness’ testimony concerning the number of people he saw fall, at the site of the alleged defective condition in the sidewalk, was an abuse of discretion?

Holding: Yes, the evidence clearly satisfies the substantial-similarity foundation requirement and is highly probative on the material issue of the sidewalk’s defective condition at the time of the pl’s fall.

Procedure: Special jury verdict for Df; S. Ct of Maine Vacate and remand.

Rule: Where a proponent can show that other accidents occurred under circumstances substantially similar to those prevailing at the time of the injury in question such evidence is admissible subject to exclusion by the trial court when the probative value of the evidence on the issues of defect, notice or causation is substantially outweighed by the danger of unfair prejudice or confusion of the issues or by consideration of undue delay.

Rationale: The majority of jurisdictions and Massachusetts have rejected or abandoned the rule of exclusion in favor of discretion.  A blanket rule of irrelevance is incompatible with modern principles of evidence.  B/c the new Rules of Evidence, did not bar the use of this type of  evidence, its admissibility must be determined by reference to the general provisions governing the admission of relevant evidence.  MR 401 defines relevancy in terms of probative value and materiality.  MR 402 provides that all relevant evidence is admissible, but under MR 403 although relevant, the evidence may be excluded when the danger of unfair prejudice, confusion or undue delay is disproportionate to the value of the evidence.  Under 401 the judge must first determine whether there is a substantial similarity between the proffer and the case at bar, and then if it is probative on a material issue.  Then if probative whether that value is substantially outweighed by prejudice, etc., of 403.  Here there was a substantial-similarity between the case and the evidence offered, and that evidence was highly probative on a material evidence, i.e., defective condition.

PL A: The trial court judge erred in excluding the testimony, under the Rules of Evidence, offered to establish the defective condition, that during the two year period prior to the accident, many others stumbled and fell at that location, because it was highly probative.

DF A: The precedent in Maine establishes that such evidence is inadmissible because it raises too many collateral issues relative to injuries with no basis in fact or law.