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Evidence of a Lack of Other Incidents

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Every once in a while the defendant in a case will try to offer what we attorneys call “Evidence of a Lack of Other Incidents”.

Here is an example, suppose you sue a grocery store because you fell when your foot caught on a product display case sticking a few inches out into the produce aisle. Invariably, the manager of the grocery will try to answer a question by saying, “our display has been that way for years and nobody else got hurt on it”.

You might be thinking, that that sounds like a very convincing argument.

But, in reality it is meaningless, and typically courts will restrict efforts by the defense to make such arguments. Why?

The lack of other accidents prior or subsequent to the accident is largely irrelevant to the Plaintiff’s accident and is inadmissible.

The prime reason for excluding all evidence of this character is, that it would lead to the trial of a multitude of distinct issues, involving a profitless waste of time for the court. Further, it would distract the attention of the jury from the real circumstance of the fall incident.

The irrelevancy of this argument can be illustrated by example.  Would a defendant who sped through a parade missing 50 people but striking 10, be allowed to show how many he missed in order to prove the reasonableness of his conduct in a personal injury action brought by the injured parade participants?  Would it be a defense that he only injured 10 out a 60 people or that his driving was reasonable since it only caused 16% of the parade goers to be injured?  Of course not.

Similarly, the issue before this jury is simply whether the area where plaintiff was injured was negligently maintained, or defective, or dangerous in some manner at the time of the plaintiff’s injury.  The fact that defendant may have escaped liability with respect to the area’s prior use is inadmissible. Moreover, the fact that nobody reported a serious injury as a result of a property defect, does not mean that nobody every tripped but suffered no injury, or almost tripped, etc.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”