Serna v. Olde Jackson Village, Inc., d/b/a Nestlenook Farm & Resort

2015 DNH 159

• Court: District Court, D. New Hampshire
• Decided: August 19, 2015
• Docket: 14-cv-049-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Adriana Serna and Charlie Serna

v. Civil No. 14-cv-49-JD Opinion No. 2015 DNH 159 Olde Jackson Village, Inc. d/b/a Nestlenook Farm and Resort

O R D E R

Adriana Serna and her husband, Charlie Serna, brought suit

against the owners and operators of Nestlenook Farm and Resort

(“Nestlenook”), after Adriana fell and was injured at Nestlenook

while walking from the skating pond to the warming gazebo. The

Sernas allege that Nestlenook was negligent in maintaining the

path from the skating pond to the warming gazebo, in failing to

warn of dangers, and in training and supervising the staff at

Nestlenook. The Sernas move, in limine, to preclude the

defendants from introducing testimony at trial about the absence

of other accidents on the path before Adriana fell. Nestlenook

objects.

Discussion

The Sernas contend that testimony about a lack of prior

accidents is not relevant to Nestlenook’s negligence in this case and that such testimony is precluded under Federal Rule of

Evidence 403. Specifically, the Sernas argue that the

circumstances of Adriana’s fall are unique to her experience at

Nestlenook so that the absence of other falls on the path is not

probative of the conditions when she fell or Nestlenook’s

negligence. Nestlenook contends that the lack of prior

accidents shows that it did not have notice of a dangerous

condition on the path and tends to show that the fall was not

caused by the conditions on the path.

“Evidence is relevant if: (a) it has any tendency to make a

fact more or less probable that it would be without the

evidence; and (b) the fact is of consequence in determining the

action.” Fed. R. Evid. 401. Relevant evidence is admissible

unless otherwise precluded. Fed. R. Evid. 402. When evidence

is relevant but its probative value is “substantially outweighed

by the danger of . . . unfair prejudice,” the evidence may be

excluded despite its relevance. Fed. R. Evid. 403.

The Sernas bring a claim of negligence, Count I, against

Nestlenook, and a claim of negligent training and supervision of

Nestlenook employees, Count II. To prove negligence, a

plaintiff “must demonstrate that the defendant had a duty to the

plaintiff, that she breached that duty, and that the breach

proximately caused injury to the plaintiff.” England v.

2 Brianas, 166 N.H. 369, 371 (2014). Duty in a negligence case

depends on “what risks, if any, are reasonably foreseeable under

the particular circumstances.” Macie v. Helms, 156 N.H. 222,

224 (2007). An employer has a duty to exercise reasonable care

to supervise its employees. Trahan-Laroche v. Lockheed Sanders,

Inc., 139 N.H. 483, 485-86 (1995). Causation requires evidence

to show a reasonable probability that without the defendant’s

conduct the plaintiff would not have been injured. Beckles v.

Madden, 160 N.H. 118, 124 (2010).

The Sernas argue that evidence Nestlenook knew of no prior

accidents should be excluded because such evidence does not

prove that accidents did not occur, rebuttal evidence is

difficult to obtain, and the lack of other accidents is not

probative of the danger that existed when Adriana fell.

Nestlenook argues that evidence of the lack of prior accidents

is relevant and admissible in this case.

The First Circuit has held that evidence of the absence of

prior accidents can be relevant to causation in negligence

claims. See Varano v. Jabar, 197 F.3d 1, 5 (1st Cir. 1999);

Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9-10 (1st Cir.

1994). Another judge in this court concluded in circumstances

that are similar to this case that the lack of falls in a

pharmacy parking lot “tend[ed] to show that the defendants had

3 no reason to know of or foresee the danger presented by the

accumulated snow and ice, that the defendants did exercise

reasonable care in maintaining the area around the CVS pharmacy,

and that [the plaintiff’s] fall was not caused by the

defendants’ negligence.” Boucher v. CVS/Pharmacy, Inc., 822 F.

Supp. 2d 98, 106 (D.N.H. 2011).

The Sernas argue, however, that the court in Boucher failed

to properly analyze the danger of unfair prejudice under Rule

403. The Sernas contend that it would be difficult for them to

rebut the evidence of a lack of prior accidents because

Nestlenook lost its business records in a fire, because Adriana

may have been the first accident, and because other accidents or

near accidents may not have come to Nestlenook’s attention

They rely on the analysis in Forest v. Beloit Corp., 424 F.3d

344 (3d Cir. 2005).

Forest involved product liability claims, and, relying on

Espeaignnette, the court required a foundation for admitting

evidence of a lack of prior accidents to avoid a danger of

unfair prejudice under Rule 403. Forest, 424 F.3d at 355-58.

The foundation required was a showing that the evidence related

to substantially similar products, a showing of the number of

similar products sold and the extent of their use, and a showing

that the defendant would have been aware of other accidents.

4 Id. at 358. The court also emphasized, as did the First Circuit

in Espeaignnette, that the admissibility of such evidence

depended on the facts and circumstances of each case. Id.

The First Circuit came to a similar conclusion in Pittman

v. Littlefield, 438 F.2d 659 (1st Cir. 1971). There, the court

considered the viability of a verdict in the defendant’s favor

when the only supporting evidence was the absence of prior

accidents. The court held, relying on New Hampshire law, that

“[e]vidence of the absence of prior accidents is admissible, but

the party seeking to rely on it must show that conditions during

the period in question were substantially similar to those

prevailing at the time of the accident.” Id. at 662. Without a

proper foundation, the court concluded, the jury was left to

“sheer conjecture” about the relevance of the absence of prior

accidents. Id.

In Boucher, the court concluded that the probative value of

the lack of prior accidents was not substantially outweighed by

the danger of unfair prejudice despite the plaintiff’s need for

rebuttal evidence, which might be difficult to obtain. Boucher,

822 F. Supp. 2d at 106. The court did not discuss the need for

laying a foundation before introducing evidence of the absence

of prior accidents. Instead, the court suggested that cross

5 examination and additional witnesses could provide the plaintiff

adequate rebuttal. Id. at 106-07.

Although the absence of prior accidents is relevant in this

case, to avoid the danger of unfair prejudice, Nestlenook will

have to provide a foundation for that evidence. Specifically,

Nestlenook will have to show that similar icy conditions had

occurred previously when skaters were using the path, how many

skaters had used the path under icy conditions, and that

Nestlenook would have known if other falls had occurred. The

issues about lost business records and whether accidents

occurred subsequently are subjects for cross examination.

Conclusion

For the foregoing reasons, the plaintiffs’ motion in limine

to exclude evidence of the absence of prior accidents (document

no. 17) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

August 19, 2015 cc: Stephen E. Borofsky, Esq. Paul B. Kleinman, Esq. John M. Lewis, Esq. David S. Brown, Esq.