Absence of Prior Incidents Is Not Admissible in Negligence Case
When addressing evidentiary issues in court proceedings, trial attorneys sometimes argue that if one side can introduce a particular type of evidence the other side must be allowed to introduce evidence of the same type. The argument goes: “Judge, the road runs both ways. What’s good for the goose is good for the gander. If they can introduce that type of evidence, so can I.” These arguments often have merit, but they do not always apply. For example, although evidence of prior similar incidents is admissible in a premises liability case, evidence of the alleged absence of prior incidents is not admissible.
Evidence of prior incidents is admissible to prove notice or knowledge of hazard
“Evidence of other similar accidents or occurrences, when relevant, is admissible to show that the defendant had notice and actual knowledge of a defective condition[.]” Roll ‘R’ Way Rinks, Inc. v. Smith, 218 Va. 321, 325, 237 S.E.2d 157, 160 (1977) (quoting Spurlin, Administratrix v. Richardson, 203 Va. 984, 989, 128 S.E.2d 273, 277 (1962)). In order to introduce such evidence, however, the plaintiff must show “that those prior accidents or occurrences happened at substantially the same place and under substantially the same circumstances, and had been caused by the same or similar defects and dangers as those in issue, or by the acts of the same person.” Id. (footnote omitted). As the Supreme Court of Virginia has explained:
This rule springs from the lessons of human experience that similar causes can be expected to produce similar effects. By definition, the test of admissibility is not identity but substantial similarity. If the place, the circumstances, and the defect associated with a prior accident are substantially the same as those in issue, evidence of that accident is admissible to show notice of the existence of the defect and notice of its dangerous potential.
218 Va. at 325-26, 237 S.E.2d at 160. In Roll ‘R’ Way Rinks, the parties agreed, however, that “evidence of prior accidents is not admissible for the purpose of proving negligence or causation at the time of the accident in issue.” 218 Va. at 325, 237 S.E.2d at 160.
In Roll ‘R’ Way Rinks, the plaintiff, who was roller skating at the defendant’s rink, fell when crossing over a steel transition plate which was placed between two areas of the skating rink. The Supreme Court held that the trial court properly admitted evidence of previous incidents in which skaters fell when crossing over steel transition plates at the rink. Even though the falls did not all occur at the same transition plates, the court held that the “substantial similarity” requirement was met since “the testimony of defendant’s manager had established earlier that the five plates were made of identical material, were designed in identical fashion, and were installed in the same manner, and that the screws by which they were fastened repeatedly worked loose and had to be replaced.” 218 Va. at 326, 237 S.E.2d at 160 (footnote omitted).
Evidence of absence of prior incidents is not admissible
On the other hand, evidence of the absence of previous injuries is not admissible in a negligence case. In Goins v. Wendy’s International, Inc., 242 Va. 333, 410 S.E.2d 635 (1991), Rebecca G. Goins sued Wendy’s International, Inc. (Wendy’s) to recover damages allegedly sustained when she consumed tainted food in a Wendy’s restaurant. Prior to trial, Goins filed a motion in limine seeking to prevent Wendy’s from introducing into evidence the testimony of two restaurant employees that they had received no other complaints of food poisoning relating to food served by the restaurant on the day Goins consumed the allegedly tainted food. The trial court denied the motion and permitted the introduction of the challenged evidence.
At trial, the restaurant’s manager was allowed to testify that, although approximately 117 food bar meals were sold on June 9, 1989 (the date Goins ate at Wendy’s), he was not aware of any other complaints about the food. The restaurant’s shift manager also testified that she received no complaints about food
other than from Goins. The jury returned a verdict for Wendy’s, and the trial court entered a judgment thereon. Goins appealed.
The Supreme Court of Virginia held that the trial court committed reversible error by admitting into evidence the testimony of the restaurant’s manager and shift manager. The Supreme Court held:
It is firmly established that evidence of the absence of other injuries is not admissible in a negligence action when timely objection to it is made. Sykes, Adm’r v. Railway Company, 200 Va. 559, 564-65, 106 S.E.2d 746, 751 (1959); Sanitary Gro. Co. v. Steinbrecher, 183 Va. 495, 500, 32 S.E.2d 685, 687 (1945). Such evidence introduces into the trial collateral issues, remote to the issue at trial, which would tend to distract, mislead, and confuse the jury. See City of Radford v. Calhoun, 165 Va. 24, 36, 181 S.E. 345, 350 (1935); Moore v. City of Richmond, 85 Va. 538, 539, 8 S.E. 387, 388 (1888). The rationale for not admitting evidence of the absence of other injuries is the same, whether the opposing party’s case is based upon direct evidence, circumstantial evidence, or a combination thereof, and whether the action lies in negligence or implied warranty.
242 Va. at 335, 410 S.E.2d at 636 (emphasis added).
Later in its opinion, the Supreme Court noted additional reasons for excluding such evidence. The Court observed that allowing evidence of the absence of other incidents
would interject evidence so problematical, due to the potential for a lack of reporting and the variables of circumstances and conditions, that such evidence would have slight, if any, relevancy or probative value. This is especially true in the present case because the absence of other complaints does not necessarily mean that there were no other incidents of sickness.
242 Va. at 335-36, 410 S.E.2d at 636.
The Supreme Court of Virginia has excluded evidence of the absence of other incidents in numerous other cases. See Sanitary Gro. Co. v. Steinbrecher, 183 Va. 495, 500, 32 S.E.2d 685 (1945) (trial court properly excluded evidence that 1,000 customers had entered the store each day for the previous eleven months and no one had been previously hurt by the shelving which plaintiff alleged caused her injury); Wood v. Woolfolk Props., Inc., 258 Va. 133, 515 S.E.2d 304 (1999) (trial court erred by allowing evidence regarding the absence of prior accidents at the curb area where the plaintiff fell). See also Harman v. Honeywell Int’l, Inc., 288 Va. 84, 758 S.E.2d 515 (2014) (trial court erred by allowing defense counsel’s argument that autopilot system on airplane had been used for 35 years without any problem).1
As the foregoing authorities show, evidentiary issues must be carefully researched and analyzed. A particular type of evidence may be admissible when offered by the plaintiff, but evidence of the same type may be inadmissible when offered by the defendant. The “goose-gander rule” does not always apply.
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1 The Harman case was not a premises liability case but instead involved a product liability claim. In Harman, the trial court had entered a pretrial order that excluded evidence of the absence of other injuries.
Because Honeywell did not assign cross-error to the court’s pretrial order, it was “the law of the case” and Honeywell could not challenge that ruling on appeal. 288 Va. at 102, 758 S.E.2d at 525. In a later decision, the Supreme Court of Virginia declined to decide “whether and under what circumstances evidence of
absence of injuries might be admissible in a products liability case.” Dorman v. State Indus., 292 Va. 111, 120, 787 S.E.2d 132, 138 (2016).
