Present Sense Impression and Admissibility of Medical Evidence

Saturday, June 17, 2006 | 0

Though this report by New York attorney Larry Rogak is about a PIP case, the rules of evidence are nevertheless of import to workers' compensation cases.

PLAINTIFF'S STATEMENT TO EMT ABOUT ACCIDENT, WRITTEN IN AMBULANCE REPORT, IS ADMISSIBLE AS PRESENT SENSE IMPRESSION

Phyllis Bayne v City of New York, 2006 NY Slip Op 04225 (2d Dept 2006) (Index No. 5344/01)

Plaintiff appealed from a judgment of the Supreme Court, Queens County, which, upon a jury verdict in favor of the defendant on the issue of liability, dismissed the Complaint.

The plaintiff sustained injuries on August 13, 2000, when she fell on a sidewalk abutting a superette located at 126-02 101st Avenue, Queens. The plaintiff alleged that sidewalk defects caused her accident and injuries. The jury verdict was in favor of the sole defendant, the City of New York. The jury, while finding that the defendant received prior written notice of a specific condition at the site of the accident, answered, "no," by a vote of five out of six, to the question: "Did the plaintiff prove that the sidewalk where [she] claims she fell was not safe." The Supreme Court denied the plaintiff's motion to set aside the verdict, but the Appellate Division reversed, and set the verdict aside.

"The Supreme Court erred in precluding testimony from Salome Singh, who would have testified to the condition of the sidewalk where the accident occurred. The court precluded her testimony on the ground that Singh was not an expert. One need not be an expert, however, to describe the physical condition of an area surrounding an occurrence, such as a sidewalk. Singh's proposed testimony was relevant and material to the issue of whether the sidewalk was unsafe."

"The Supreme Court also precluded witness Michael Miller, an Emergency Medical Services worker, from testifying, on hearsay grounds, that upon his arrival at the scene, the plaintiff stated that she had tripped and fallen. The plaintiff's statement was included in an ambulance call report which was also precluded. The preclusion of this evidence constituted error. The plaintiff's statement to Miller was admissible as a present sense impression, and relevant to issues of whether the plaintiff had 'tripped' or 'slipped' on the sidewalk. The statement in the ambulance call report would also have been admissible as a present sense impression had the witness been permitted to lay the business record foundation for the document (see CPLR 4518[a])."

"The verdict was based on the plaintiff's failure at trial to prove that the sidewalk was unsafe. The trial court's errors were not harmless as the precluded evidence, if allowed, may have had a substantial influence upon the jury verdict and the cumulative effect of the errors warrants a new trial."

Comment: How do we reconcile this decision with the general rule that statements made by a plaintiff in a hospital record are not admissible unless they relate to treatment? I suppose, for one thing, that in this case the person to whom the statement was made (the EMT technician) was available to testify as to what was said to him. The problem with statements in a medical record usually revolves around trying to get them into evidence based on the records alone. Also, it is usually the defendant who is trying to get the statement in the medical record into evidence as an admission against interest, because it usually is a statement damaging to the plaintiff's case. I think it is a bit of a stretch to categorize a plaintiff's statement that she "tripped" as opposed to "slipped" as a "present sense impression," but that's what the court said. I can only hope that if the plaintiff had said "I tripped over my shoelaces," that would be admissible too.

As for the testimony of a lay person about the condition of the sidewalk, I'm scratching my head over that. Why would a plaintiff want to introduce the testimony of a lay witness about that, instead of an expert? Certainly a lay witness can give a description of what she saw, but how could a lay witness say that a condition was dangerous? Lay witnesses generally can't give opinions unless it is an opinion within the ken of an ordinary person. And yet, here the plaintiff gets a new trial.

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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