Topics: Appellate Review

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KAEO v. DAVIS R 401, 403

68 Haw. 447, 719 P.2d 387 (1986)

Guardian of passenger injured when vehicle struck pole sued city and driver for damages. The First Circuit Court, City and County of Honolulu, Ronald T.Y. Moon, J., adjudged city and driver jointly and severally liable. City appealed, and guardian cross‑appealed. The Supreme Court, Nakamura, J., held that: (1) evidence of driver's drinking was relevant and material, and its exclusion was abuse of discretion amounting to error; (2) exclusion of evidence of prior accidents, when offered for purpose of establishing notice to city of potentially dangerous condition was error; … Judgment vacated; remanded for new trial.
Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ. NAKAMURA, Justice (writes the opinion)

[Plaintiff was a passenger in a single-car accident on a double curved section of 10th Avenue in Palolo Valley. Driver was drinking and hit a utility pole. Driver was never seen again after the accident. At trial the jury found the driver 99% liable and the City and County 1% liable.

The City appealed because it was not allowed to admit the evidence of the driver's drinking. The plaintiff cross-appealed claiming error in that it was not allowed to admit evidence of prior similar accidents.]


Whether [the driver] operated the errant vehicle while under the influence of intoxicating liquor or not undoubtedly was “an important circumstance bearing on the issue of his negligence.” …
Here, the trial court ruled out all evidence of drinking by [the driver], whatever its source, on grounds that “you need other evidence besides a mere consumption of alcohol to bring it into evidence” and “in today's society, any indication of drinking ... and driving can raise undue prejudice against [the driver].” [FN2] We think the evidence of drinking and [the driver’s] other conduct had a tendency to establish his negligence as the proximate cause of the harm that befell the plaintiff.
FN2. The court's oral ruling on this question was:

I don't believe that the alleged speeding as described by Mr. Nakamoto in an area where the speed limit could be reasonably said to be 25 miles an hour is evidence of intoxication or being under the influence. I don't believe that reaching for cigarettes whether it be on the back seat or on the dash itself is evidence of intoxication or being under the influence. I don't believe that another person saying that we were feeling good and not the driver, defendant saying that that feeling can be imputed to the driver and thus being under the influence or intoxicated at that time, the Court finds as a matter of law that the evidence which the City feels corroborates intoxication or being under the influence with four beers in three and a half hours before the accident does not meet the requirement to indicate that you need other evidence besides a mere consumption of alcohol to bring it into evidence.

I feel that in today's society, any indication of drinking, no matter what the amount, and driving can raise undue prejudice against that person who has been said to be quote drinking and driving end quote. And so at least in this case I will not permit evidence to come in on the consumption of alcohol, and Anna's Lounge is dismissed from this lawsuit. There will be no reference to Anna's Lounge because of the inference that may be drawn that there was drinking without explanation.
“Had the manner in which the [driver’s] car was driven been wholly beyond criticism, the fact of [driver’s'] intoxication would have been wholly irrelevant,” …. But … there was evidence of speeding and of the driver taking his eyes off the road while attempting to round a curve. And there was more [FN4] from which a jury could infer “four beers,” though insufficient to cause [the driver] to be intoxicated in a strict penal sense, were “sufficient to impair his capacity … Unquestionably, the evidence of drinking was relevant and material.

FN4. For example, in a pre‑trial deposition Miss Kido described [the driver] as “feeling good” when they left Anna's Lounge. The term is a colloquialism describing the mild euphoria that often accompanies the consumption of alcohol.
FN5. The trial judge's ruling was influenced, we believe, by an offer of proof that [the driver] showed no outward sign of intoxication at the accident scene. But alcohol “also impairs judgment and discrimination. In short, alcohol adversely affects the ability to perform accurately and reason clearly.” … Furthermore studies have indicated that relatively low doses of alcohol may affect driving performance.

The evidence, however, was also deemed inadmissible on the ground that “in today's society, any indication of drinking, no matter what the amount, and driving can raise undue prejudice against that person who has been said to be 'drinking and driving.' … “The responsibility for maintaining the delicate balance between probative value and prejudicial effect,” we have said, “lies largely within the discretion of the trial court.” “Nevertheless, discretion can be abused,” and in this instance we think it was.
Relevant evidence, as noted above, is not excludable under Haw.R.Evid. 403 unless its probative value is substantially outweighed by the danger of unfair prejudice. “Analyzing and weighing the pertinent costs and benefits is no trivial task.... Even the same item of evidence may fare differently from one case to the next, depending on the relationship to the other evidence in the cases and the importance of the issues on which it bears.” A ruling of inadmissibility premised merely upon an impression that “any indication of drinking” by a party is fraught with “the danger of unfair prejudice” cannot be one that “satisf[ies] the cost‑benefit calculus” demanded by Haw.R.Evid. 403.

Granted, the evidence of drinking was prejudicial. Still, evidence with a capacity for unfair prejudice cannot be equated with testimony simply adverse to the opposing party; for evidence is only material if it is prejudicial in some relevant respect. We are not willing to assume “any indication of drinking” is so unfair to the drinking driver that the opposing party must be denied his right to have relevant and material evidence considered by the trier of fact. Nor are we willing to concede that trial juries, with guidance from the trial court, are incapable of rendering objective fact determinations in trials of negligence actions in which drinking is involved.

The judge's ruling of inadmissibility, it appears, was influenced by representations that in pre‑trial depositions Miss Kido and Samuel Taupo testified [the driver] was sober prior to the accident and the investigating officer detected none of the tell‑tale signs of drunkenness when he questioned [the driver] at the accident scene. These, however, were matters that could have been offered instead for assessment by the trier of fact along with the evidence of drinking by the driver. The trial judge's decision not to permit the jury to hear such evidence was an abuse of discretion amounting to error, and we cannot say it had no effect upon the outcome of the trial. Since our conclusion compels a retrial of the action, we proceed to the issue raised by the plaintiff in her cross‑appeal.


The issue is whether evidence of other accidents is admissible in the trial of a negligence action,… The plaintiff urges the trial judge's exclusion of accident reports containing evidence of several prior accidents occurring near the site of the mishap in which she suffered injuries was error, and we agree.


Evidence of other accidents may be “highly probative on material issues of a negligence action “[E]vidence of other similar accidents or occurrences may be relevant circumstantially to show a defective or dangerous condition, notice thereof or causation on the occasion in question.” we have cautioned our trial courts that: [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. Warshaw v. Rockresorts, Inc., 57 Haw. at 652, 562 P.2d at 434 … But we recognize that “when the purpose of the offered evidence is to show notice,” the required similarity in circumstances is considerably less than that demanded when the object is to show a defective or dangerous condition or causation, “since all that is required here is that the previous ... [accident] should be such as to attract the defendant's attention to the dangerous situation which resulted in the litigated accident.” Id.

Yet “even when sufficient similarity is shown, the admission of evidence of prior similar accidents is [still] within the discretion of a trial court.” … see Haw.R.Evid. 403.


The plaintiff offered the evidence of prior accidents, consisting of four accident reports, to show the existence of a dangerous condition, the City's knowledge of the condition, and as a foundation for testimony by her expert witness. 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.” The evidence may be inadmissible for one purpose yet admissible for another; …“[t]he strictness of [the] requirement of similarity of conditions is 'much relaxed, however, when the purpose of the offered evidence is to show notice....' “Warshaw v. Rockresorts, Inc., … From an examination of what was proffered, we are not convinced that it met the test of admissibility to establish the existence of a dangerous condition or causation.

A perusal of the police reports of four prior accidents offered as evidence reveals the accidents happened over a span of six years and at spots in the double‑curved section of the road in the proximity of but not at the very site of the accident in question. The record also indicates there were subsequent modifications of roadway signs and markers along that section of the road. Since it was incumbent upon the proponent of the evidence to show “that the conditions [of] the alleged previous accidents were the same or substantially similar to the one in question,” we cannot say it was error for the trial judge not to admit the evidence for purposes of proving the existence of a dangerous condition or causation.

But we think the proffered evidence met the “much relaxed” standard applicable when admission is sought on the ground that the prior accidents should have attracted the City's attention to a potentially dangerous condition. Moreover, the introduction of this evidence would not have resulted in unfair surprise or prejudice to the City since the reports were prepared by officers of the Honolulu Police Department. Nor can we say its admission would have caused confusion of the issues, for the jury could have been properly instructed that the reports were admitted for the limited purpose of showing notice. And we see no reason why the introduction of the evidence would have consumed an inordinate amount of time.


The judgment is vacated, and the case is remanded for a new trial.

From, Hawaii Cases
Trial court erred in excluding, as cumulative under this rule, the playing of the 911 tape, as defendant had the right to have the jury hear the best evidence of the complainant's demeanor -- the 911 tape -- and not rely on the opinions of other witnesses as to complainant's demeanor. State v. Marcos, 106 H. 116, 102 P.3d 360 (2004).
Where seller's settlement offer did not contain any disclaimer of liability or releases from further claims against seller or broker, jury could have interpreted offer, despite cautionary instruction, as an admission of liability by seller; offer thus properly excluded. 84 H. 162 (App.), 931 P.2d 604.
Where court failed to view otherwise relevant videotape before definitively ruling on its admissibility, exclusion of tape was abuse of discretion. Tabieros v. Clark Equipment Co., 85 H. 336, 944 P.2d 1279 (1997).
Trial court did not abuse its discretion in refusing to admit evidence that motorcyclist did not have motorcycle license at time of accident. Kealoha v. County of Hawaii, 74 H. 308, 844 P.2d 670 (1993).

From, Courtroom Evidence Handbook

by Steven Goode & Olin Guy Wellborn (2006-2007)
Unfair prejudice.” Rule 403 “does not offer protection against evidence that is merely prejudicial, in the sense of being detrimental to a party’s case. Rather, the rule only protects against evidence that is unfairly prejudicial. Evidence is unfairly prejudicial only if it has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Advisory Committee’s Note, F.R. Evid. 403. It is unfairly prejudicial if it ‘appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise ‘may cause a jury to base its decision on something other than the established propositions in the case.’”
Evidence presenting dangers of unfair prejudice can often be dealt with by compromise on the part of the trial court.

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