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
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
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
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