Proving something didn’t happen sounds like an impossible task, inside or outside of the courtroom. Not surprisingly, getting “evidence” of a non-event admitted can be difficult.
In Robert Hogan v. Gray Gable, Nassau Village Volunteer Fire Dept, Inc. (First District: Wetherell, Lewis and Thomas), the plaintiff lacerated his hand on metal mesh while entering a dunk tank at a charity event. The tank-owner claimed that there were no prior incidents with the tank going back to its original construction in 1990 and sought to admit the same.
Plaintiff argued that there was evidence of modification in 2000-2002 (including the mesh) and that the Defendant could not establish it was the same equipment under the same circumstances (e.g., used at night under same lighting conditions) going back to 1990.
A trial judge’s decision to admit evidence of occurrence or nonoccurrence of prior accidents under substantially similar conditions is within the sound discretion of the trial court. It must be the “same type of equipment” under “substantially similar conditions.” Interestingly, if the item is not modified/changed, one case suggests that a google manufacturer did not have to establish “substantially similar use.”
Herein, the evidence of modification required strict compliance with both parts of the test.