June 25, 2010

Evidence Rules Cramping Up Common Sense

Smarter fellows than I have observed that the rules of evidence are a systematic effort to keep the truth from seeping into the courtroom. As one of the authors of the Notable British Trials series observed way back in 1933, the “law of evidence has been built up by generations of judges distrustful of the capacity of juries.” The evidence rules are the law’s way of saying that the trial judge is the only one in the courtroom with a lick of common sense.

Obviously this thesis overstates things a smidge. But I fear that the Alaska Supreme Court’s recent decision in Mueller v. Buscemi demonstrates that there is actually something to this view. (And, yes, I admit that I only read the opinion because I thought it might involve wacky Steve Buscemi or the Coen Brothers. Sadly, it does not and the entertainment value of the decision is vastly reduced.)

The Mueller case involved a simple slip and fall in a parking lot outside a commercial building. (Warning: Gravity In The Area!) The plaintiff rolled snake eyes in front of the jury on her claim against the building owner. The plaintiff blamed the adverse outcome on the trial judge not allowing in evidence of other accidents. Specifically, the trial court kept the plaintiff from giving the jury evidence that a pregnant woman fell in front of the building two weeks before the plaintiff’s accident; that on the same day as the plaintiff’s accident another woman complained about falling in front of the building; and that on the same day as the plaintiff’s accident, a guy fell and hurt his knee in front of the building.

Citing the established evidence rule, the Supreme Court said that the plaintiff was entitled to bring this evidence in only if she showed the other falls occurred “under substantially similar circumstances.” This she failed to do, according to the court, because the plaintiff fell in the back parking lot and the other falls happened in the front of the building. As such, the other falls “are not necessarily probative of the conditions that existed in the building’s rear parking lot.”

Hmmmm . . . It seems fairly obvious from the opinion that the presentation of plaintiff’s case was lacking. In other words, the plaintiff may have deservedly lost at trial.

Yet, in the rush to confirm the outcome, the Supreme Court gave an exceedingly tight interpretation to the evidence rules. I mean, you have to wonder about the science underlying the Supreme Court’s microclimatic application of the law of evidence. We’ve got people falling like ten pins outside this building. But the jury is not entitled to know about this because perhaps it might have snowed more in the front of this building than the back?

How close do the other accidents have to be to the exact spot where the plaintiff took a tumble to meet the requirements of the evidence rules? Ten yards? Ten feet? Ten inches? It just seems like the court is using the blunt edge of the evidence rules to cut things too finely.

Also, as we know from our prior discussion of slip and fall cases, negligence requires proof of more than just something bad happening. You have to show that the defendant had time to find out about a dangerous condition and correct it. Wouldn’t multiple prior gravitational adventures in the front of the building be pertinent to the question of the owner’s notice of dangerous conditions surrounding the building? If the owner had heeded the prior incidents, a sanding crew could have been called in to check all of the exterior areas. The evidence should have come in for the jury to decide how much bearing it had on the case.

One hopes that the next time evidence of “similar accidents” comes into play, the Mueller court’s cramped interpretation of the evidence rules won’t be followed too closely. The Alaska courts ought to trust in the common sense of jurors to be able to, among other things, understand the difference between the front and back of a building.