A "showing of substantial similarity is required when a plaintiff
attempts to introduce evidence of other accidents as direct proof
of negligence, a design defect, or notice of the defect." Cooper
v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th
Cir.1991). Minor or immaterial dissimilarity does not prevent
admissibility. Western Recreational Vehicles, Inc. v. Swift
Adhesives, Inc., 23 F.3d 1547, 1555 (9th Cir.1994).
Evidence of similar accidents is admissible to refute a defense
witness' testimony that a given product's design is safe.
Cir. 1986), Rexrode v. American Laundry Press co., 674 F.2d 826
(10th Cir. 1982). Under federal law, it is clear that evidence
of the occurrence of other accidents involving substantially
similar circumstances is admissible, pursuant to a strict
liability theory to refute testimony by a defense witness that a
given product was designed without safety hazards. McKinnon v.
Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981); Wojciechowski v.
Long-Airdox Div. of Marmon Group, Inc., 488 F.2d 1111, 1116 (3d
Cir. 1973); Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d
394, 401 (5th Cir. 1965); Prashker v. Beech Aircraft Corp., 258
F.2d 602, 608 (3d Cir.), cert. denied, 358 U.S. 910 (1958).
As stated in Pau v. Yosemite Park and Curry Co., 928 F.2d 880
(9th Cir. 1991), appeal after remand, 39 F.3d 1187 (9th Cir.
1994): "[The] similar circumstances requirement is much more
strenuous when the evidence is being offered to show the
existence of a dangerous condition or causation and less strict
where the evidence is being offered to show notice." 928 F.2d
880 at 889 Hence, there is a lower standard of "similarity"
needed in order to introduce the prior similar accidents for
purposes of showing notice of the dangerous leash and negligence
than for other issues. For this purpose all that is being shown
is that the accidents were of a kind that should have served to
warn defendant. Exum v. General Electric Co., 260 U.S. App. D.C.
366, 819 F.2d 1158 (App. D.C. 1987). "[W]hether a seller knew or
reasonably should have known of the danger in his or her
product..." is "highly relevant to a negligence action".
Johnston v. Raybestos-Manhattan, Inc., 69 Haw. 287, 288-289, 740
P.2d 548, 549 (1987).
In the case of White v. Ford Motor Co., 312 F.3d 998 at 1009 (9th
Cir. 2002), opinion amended on denial of rehearing by 335 F.3d
833 (9th Cir. 2003), the court allowed another Ford pickup truck
owner, Tammy Bobb, to testify by deposition that her truck had
rolled despite the parking brake's being set, and allowed an
expert Dr. Laird to testify about the Bobb rollaway. The court
also allowed the Whites to put an exhibit into evidence showing
that Ford had received a number of customer complaints of
rollaways. In upholding the court's decision in this regard, the
Ninth Circuit held that the other Ford truck owner's testimony
was admissible although the testimony about what defect had
caused that accident was somewhat ambiguous. Furthermore, the
Ninth Circuit held that the listing from Ford of the customer
complaints of rollaways was clearly admissible under the business
records exception to the hearsay rule.
Evidence of incidents in which gas ranges manufactured by the
defendant were inadvertently ignited by persons brushing against
the control knobs was admissible in an action brought by a young
child who climbed on top of a chair, leaned over the range and
accidentally ignited the stove, thus sustaining serious burns.
Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 855 (Tex. 1977). The
requisite degree of similarity between such incidents was not
very high, as the only significant shared characteristics were
the brand of the range and the inadvertence of ignition. Id.
Similarly, the "substantially similar" standard is inclusive
enough to allow the admission of evidence of previous turnovers
involving trailers loaded with hanging meat, where other hanging
meat trailers allowed meat to swing. The relevant similarity is
the lack of restraints to prevent the hanging meat from swinging
and the resulting lack of stability. Mitchell v. Fruehauf Corp.,
568 F.2d 1139 (5th Cir. 1978), reh. den., 570 F.2d 1391 (5th Cir.
Turning to Hawaii authority on the admissibility of other
accidents, the Hawaii Supreme Court has indicated that it is the
danger (the risk of injury) posed by the defect which is
considered by the court and not "causation". The following quote
is taken from Tabieros v. Clark Equipment Co., 85 Haw. 336, 944
P.2d 1279 (1997): "[T]he precise mechanism of "causation
between the prior incidents and [the plaintiff's] accident need
not be identical. The critical issue is whether the failure [of
the defective product in the prior incidents] and the one [in
question on the present occasion] posed [the same] risk of
injury[.]" [cites omitted]" 85 Haw. 379, 944 P.2d 1322.
Another recent Hawaii appellate case which involved similar
claims of "similarity" is the case of Page v. Domino's Pizza,
Inc., 80 Haw. 204, 908 P.2d 552 (Haw. App. 1995). In that case
Domino's Pizza argued that evidence of prior stool accidents in
which stools seats had come off and the tops of the underlying
poles had been exposed were not substantially similar to the
accident in question in which a stool had collapsed- injuring the
user. The court examined the existing law on "substantial
similarity" as follows:
"In Warshaw, supra, the Hawai'i Supreme Court stated that
evidence of previous accidents may be admitted only if
certain conditions are met: [b]efore evidence of previous
... [accidents] may be admitted on the issue of whether or
not the condition as it existed was in fact a dangerous one,
it must first be shown [by the proponent of the evidence]
that the conditions under which the alleged previous
accidents occurred were the same or substantially similar to
the one in question.....
"The strictness of this requirement of similarity of
conditions is "much relaxed, however, when the purpose of
the offered evidence is to show notice, since all that is
required here is that the previous ... [accident] should be
such as to attract the defendant's attention to the
dangerous condition which resulted in the litigated
Id. at 652, 562 P.2d at 434 (quoting Laird v. T.W. Mather, Inc.,
51 Cal.2d 210, 220, 331 P.2d 617, 623 (1958)).
"Evidence of prior similar incidents 'may be relevant
circumstantially to show a defective or dangerous condition,
notice thereof or causation on the occasion in question.' " Kaeo
v. Davis, 68 Haw. 447, 455, 719 P.2d 387, 393 (1986) (quoting
Simon v. Town of Kennebunkport, 417 A.2d 982, 984-85 (Maine
1980)). "The purpose for which the evidence is offered 'is
important in determining whether the proof will be admitted and
how strictly the requirement of similarity of conditions will be
applied.' " Kaeo, at 456, 719 P.2d at 393 (quoting E. Cleary,
McCormick on Evidence § 200, at 587 (3d ed.1984))." 80 Haw. at
206, 908 P.2d at 554.
The court went on to find that the plaintiff had met the burden
of showing substantial similarity for both purposes- over the
defendant's objection. As the Court stated:
"Essentially, the testimony indicates that the other stools
had broken seats and fell apart and the stool Page sat on
collapsed. Offered to establish that the stool created a
dangerous condition, the prior incidents were sufficiently
similar to meet and satisfy the Warshaw criteria. All of the
four stools, including the one on which Page was injured,
were similar in structure and makeup. The record indicates
that in the prior incidents, two of the stools broke or fell
apart when the wood screws went through the fiberboard base
of the seat. The stool that Page sat on collapsed and was
apparently thrown away.... The prior incidents and the Page
incident involved persons sitting on the stools. As such,
the causation between the prior incidents and Page's
accident need not be identical. The critical issue is
whether the failure of the other two stools and the one on
which Page sat posed a risk of injury for anyone sitting on
"We also think the proffered evidence met the 'much relaxed'
standard in Warshaw which applies when admission is sought on the
ground that the prior incidents should have attracted Domino's
attention to a potentially dangerous situation or condition.
Under this standard, we conclude that the prior incidents were
substantially similar to Page's accident and evidence thereof was
properly admitted to provide notice of a dangerous situation or
condition." 80 Haw. at 207-208, 908 P.2d at 555-556. As stated
by the Hawaii Supreme Court in Tabieros v. Clark Equipment Co.,
85 Haw. 336, 944 P.2d 1279 (1997): "Evidence of other accidents
may be "highly probative on material issues of a negligence [or
strict product liability] action." Whether or not a seller (or
lessor) knows or reasonably should have known of the dangers in
his or her product is highly relevant to a negligence action.
Johnson v. Raybestos-Manhattan, Inc., 69 Haw. 287, 288-289, 740
P.2d 548, 549 (1987).
Evidence of Lack of Similar Accidents by Manufacturer (?)
Where a manufacturer has failed to establish that there was
accident reporting system whereby accidents would have been
reported, it is error to admit evidence that thousands of similar
products had been shipped without any report of accidents. Lau
v. Allied Wholesale, Inc., 82 Haw. 428 at 440, 922 P.2d 1041 at
1053 (Hi. App. 1996). As stated in Lau, supra, at 82 Haw. 440,
922 P.2d 1053:
"Plaintiffs contend that the trial court abused its
discretion by permitting Defendants' witness, Thomas William
Dose, a branch manager for Allied's office in Taiwan, to
testify that 14,000 similar, but not identical, parts
washers had been shipped to a Nevada company, and that about
13,000 parts washers had been shipped to Allied without any
report of incidents....
"In order to admit evidence of lack of prior accidents,
Defendants must meet the following requirements: (1) there
must be proof 'that the absence [of accidents] occurred when
the product was used under conditions substantially similar
to those faced by plaintiff[,]' and in a number sufficient
so as to make the absence of accidents meaningful... and (2)
Defendants must demonstrate that a communication system was
in place whereby accidents could or would be reported or
recorded. Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 700
P.2d 819, 825, cert. denied, 474 U.S. 948, 106 S.Ct. 314, 88
L.Ed.2d 295 (1985); Boy v. ITT Grinnell Corp., 150 Ariz.
526, 724 P.2d 612, 618 (App. 1986) (witness had not
established that he would have learned of prior incidents).
"In the instant case,... we believe Defendants failed to
satisfy requirement (2) above. Our review of the transcript
indicates that Defendants failed to establish that there was
an accident reporting system whereby accidents would have
been reported and, therefore, failed to lay the required
foundation. Accordingly, we concluded that Dose's testimony
as to the lack of prior accidents should not have been
admitted without a proper foundation."
In Jones v. Pak-Mor Mfg. Co., 700 P.2d 819 (Ariz. 1985), the
Arizona Supreme Court specifically addressed the issue of whether
evidence of the absence of prior accidents was admissible in a
product liability action. The Jones court affirmed the lower
court's decision to exclude evidence of the absence of prior
accidents on grounds that such evidence lacked relevance and/or
probative value. In Jones, plaintiff alleged improper design of
a garbage compactor manufactured by defendant. Prior to trial,
plaintiff moved to exclude any evidence that the machine had been
in use for 26 years without report of similar accidents.
Defendant contended that thousands of machines with the same
design had been sold, that they had been used under widely
varying conditions, and that there had been no report of claims
to, or against, defendant, based on any injury sustained in a
manner similar to that alleged by plaintiff.
In affirming the decision of the lower courts in Jones, the
Arizona Supreme Court stated:
"Nevertheless, experience teaches us that the problems of
prejudice, inability of the opposing party to meet the
evidence, and the danger of misleading the jury are
substantial. We are aware, also that defendant's 'lack of
notice' of injury does not establish the fact that no
injuries had occurred, and that a 'long history of good
fortune' may not preclude the conclusion that a product was
defective and unreasonably dangerous. [citations omitted]
"... The essential nature of evidence of the absence of
prior accidents is different from the evidence of the
existence of prior accidents. It is harder to prove that
something did not happen than to prove that it did happen.
When a witness testified that he knows of no prior
accidents, there are two possible explanations. The first
is that there had been no prior accidents; the second is
that there had been prior accidents but the witness does not
know about them. This problem, however, is not peculiar to
safety - history evidence in product liability cases. It
is, we believe, a variant of the 'negative evidence'
problem. [citations omitted] The response of most courts
to this problem has been that testimony that a witness did
not see an event (knows of no prior accidents) 'has, in and
of itself no probative force sufficient to prove that the
event did not occur. [citations omitted] Generally, courts
hold that such negative evidence is inadmissible, unless
testimony that the witness did not see the event or does not
know of it is coupled with further evidence that the witness
was in such a position or has such sources of knowledge that
if the event had occurred, he would have seen it or would
have known about it. [citations omitted] 700 P.2d 824
The Jones court observed:
"Thus, if the import of the evidence is no more than
testimony that no lawsuits have been filed, no claims have
been made, or 'we have never heard of any accidents,' the
trial judge generally should refuse to offer evidence since
it has very little probative value and carries much danger
of prejudice." 700 P.2d 825.
Thereafter, in Boy v. TTI Grinnell Corporation, 150 Ariz. 526,
724 P.2d 612 (Ariz. 1986), the Arizona Court of Appeals reversed
a trial court's admission of safety history in a product
liability action against a manufacturer of pipe fittings
concluding that defendant manufacturer failed to meet the
"formidable" evidentiary predicate required by Jones v. Pak-Mor.
The Court of Appeals held that no sufficient foundation was laid
for testimony from an engineer for defendant to show that if
there was information available about prior accidents that such
an engineer would have known of such information. The Boy court
"Common sense suggests that users might not complain about a
defective item that costs only one dollar. Consumers might
take a loss on the item, rather than take the time and spend
the money to bring the defect to ITT's attention. This is
precisely the type of evidence which Pak-More concluded
should be excluded because 'it has very little probative
value and carries much danger of prejudice'." [citations
omitted] 724 P.2d 618
Similarly, in Walker v. Trico Manufacturing Company, Inc., 487 F.2d
595 (7 Cir. 1973), the United States Court of Appeals for the
Seventh Circuit addressed this issue. That court held that the
trial court erred in allowing defendant manufacturer to introduce
evidence of an absence of prior accidents on its blow-mold
A recent 3rd Circuit Court of Appeals case, Forrest v. Beloit Corporation, No. 04-2184 (3d Cir. Sept 16, 2005), also addressed these issues. That court set out specific considerations which a trial court should consider before allowing a manufacturer to introduce evidence of an absence of prior accidents The court stated "In most cases the required foundation [involves] three elements: (a) similarity - the defendant must show that the proffered testimony relates to substantially identical products used in similar circumstances; (b) breadth - the defendant must provide the court with information concerning the number of prior units sold and the extent of prior use; and (c) awareness - the defendant must show that it would likely have known of prior accidents had they occurred. (p 31-32 of the opinion).