Simon v. Kennebunkport
417 A.2d 982 (1980)

  • Simon was walking down the street when she tripped on the sidewalk and fell, breaking her hip.  She sued the city of Kennebunkport for negligence in maintaining the sidewalk.
  • At trial, Simon attempted to introduce testimony that many other people had tripped on the sidewalk over the years in that exact spot.  Kennebunkport objected to this evidence on the grounds that it was not relevant.
    • Simon had the owner of a store on that street testify that “at least one person a day falls down at that point.”
  • The Trial Judge excluded the evidence.
    • The Trial Judge found that this type of evidence (a similar happening) was not admissible, because the other falls happened at other times and involved other people and therefore they were not relevant.
      • This is also known as other-accident evidence.
      • Specifically, it is also known as spontaneous similar occurrence, because it was not an experiment performed as part of the litigation.
        • Those are known as created similar occurrence.
    • The Trial Judge did allow Kennebunkport to mention that Simon’s husband did not fall down while he was walking with her.
      • That happened at the exact same time, and under the exact same conditions, so the Trial Judge felt that it was similar enough to be admissible.
  • The Trial Court found for Kennebunkport.  Simon appealed.
  • The Maine Supreme Court vacated the judgment on the grounds that Simon’s evidence should not have been excluded.
    • The Maine Supreme Court found that such evidence should be admissible as long as the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice or confusion of the issue.
      • FRE 402 says that all relevant evidence is admissible.
      • Unless the probative value of the evidence is not outweighed by it’s prejudicial effect (FRE 403).
    • Kennebunkport was free to argue that circumstances in the other falls were different and therefore the jury shouldn’t give the evidence much weight.
  • Even if Simon was not allowed to introduce this evidence to establish that there was a hazard at the location, she might have been able to introduce the evidence to show that Kennebunkport was negligent in not fixing the hazard (assuming she could establish that the hazard existed by other means.)
  • If there was testimony that the similar occurrence wasn’t all that similar (for example, the store owner had really only seen people fall when it was icy), the evidence is still admissible, but the weight that evidence should be given could be argued (and decided by the jury).