1. LACK OF PRIOR SIMILAR ACCIDENTS IS NOT NECESSARILY A DEFENSE IN A PREMISES LIABILITY CASE.
“It has never happened before” is not necessarily a valid defense to a premises liability case:
"When an unreasonable risk of danger exists, the landowner bears a duty to protect against the first occurrence, and cannot withhold precautionary measures until after the danger has come to fruition in an injury-causing accident." (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1305.)
2. EVIDENCE OF NO PRIOR SIMILAR ACCIDENTS IS NOT NECESSARILY ADMSSIBLE IN A PREMISES LIABILITY CASE (such as, for example, a trip or slip and fall).
The seminal or leading case regarding this issue is Benson et al. v. Honda Motor Company, Ltd., etc., et al., (1994) 26 Cal.App.4th 1337, 1334.
Regarding the admissibility (allowance) of testimony in court regarding the absence of prior similar accidents or claims, the court held that "trial courts should be cautious in exercising their discretion to admit such evidence. They should bear in mind that 'problems of prejudice, inability of the opposing party to meet the evidence [of absence of prior claims], and the danger of misleading the jury are substantial.’"
If the defense can preliminarily establish a foundation that the particular condition has existed long enough (through, for example, diligent record keeping of past inspections of the alleged dangerous area), the lack of prior accidents before the subject incident occurred may be relevant to show that the condition is not dangerous. If their record keeping isn't accurate or thorough, then the evidence should be excluded under Evidence Code Section 352 which states:
in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission
(a) necessitate undue consumption of time or (b) create substantial
undue prejudice, of confusing the issues, or of misleading the jury.”
Before the California Evidence Code was adopted, a number of cases stated that the evidence of the absence of previous accidents was NOT admissible:
Murphy v. County of Lake (1951) 106 Cal.App.2d 61,65 ("It is the rule that evidence of the absence of previous accidents to show that no dangerous condition existed is inadmissible.”).
Hawke v. Burns (1956) 140 Cal.App.2d 158, 169 ("…for certain limited purposes the plaintiff may prove previous accidents but a defendant, at least in the first instance, may not prove absence of previous accidents").
But modernly, in light of the Benson case, the better argument is that lack of other similar accidents is inadmissible because it is:
the defendant can’t
first establish and produce sufficient documents evidencing diligent
keeping of inspections of the subject area where the alleged dangerous
Moreover, even if a witness does not know of any accidents, such lack of knowledge does not prove that no prior accidents occurred.
Still further, there is always a first victim, and, therefore, a lack of prior accidents does not necessarily prove that the premises was safe for purposes of disproving negligence.
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