0513

You have discretion to rule either way, of course. I think most judges would exclude the evidence.

It is probative on two issues -- 1) notice to Big Red of a dangerous situation and 2) establishing the unreasonableness of Jane’s driving itself. However, there is a connection problem for either use. The evidence has extremely low probative value unless it can be better connected to one of the two issues -- by showing that Big Red’s management was aware of the Arden’s previous conduct (notice); or that the previous incidents of cell phone use and failure to stop were substantially similar (condition). Because it is missing these connections, the probative value is low.

There is a substantial Rule 403 danger of confusion of the issues. We are supposed to be litigating the conditions at the time plaintiff fell, not on previous occasions.
This is a recurring and problematic area of evidence. From prior accidents to prior drug use to prior acts of child molestation, courts are called upon every day to resolve disputes over whether to allow evidence of prior similar events. They are always potentially confusing and distracting, but the probative value varies considerably depending on how close in time, how often, and how similar the prior events were.

Questions? E-mail tanford@indiana.edu and refer to 0513.

Problem 5B part three. What argument can the plaintiff make that this evidence violates Rule 403? Write out an answer and click here .