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Nielsen v. Port of Bellingham7/30/2001
, alcohol, where there was a 'complete absence of any evidence that she was under the influence of or affected by intoxicating liquor at the time of the accident{,}' outside of evidence that she had consumed alcohol prior to the accident. That Nielsen drank one and a half screwdrivers, had little to eat that day, and that hospital staff had given her a blood alcohol test (which registered at .06) because they smelled alcohol on her breath, was insufficient to require as a matter of law that intoxication as it relates to contributory negligence be placed at issue before the jury. Nielsen testified that she did not feel unsteady when she left the Cadenza. None of the people aboard the Cadenza had concerns about Nielsen's sobriety. The Port presented no evidence to show that Nielsen's conduct upon leaving the Cadenza was affected by alcohol. The court's exclusion of this evidence was not an abuse of discretion.
Savior Papetti's Testimony
The Port also assigns error to the court's ruling permitting Savior Papetti to testify about his experience falling on the dock, and to Papetti's subsequent testimony that he reported his fall to the Port.
Proof of other accidents in the same area at other times, 'under the same or similar circumstances, may be received for the purpose of showing the existence of a dangerous condition.' O'Dell v. Chicago , Milwaukee, St. Paul & Pac. R.R. Co., 6 Wn. App. 817, 826, 496 P.2d 519 (1972). But '{b}ecause collateral issues are thereby injected into a case, as a predicate for admission, there must be a substantial similarity shown between the proffer and the case at bar.' Blood v. Allied Stores Corp., 62 Wn.2d 187, 189, 381 P.2d 742 (1963).
During the hearing on the motion in limine, the trial court ruled that Papetti could testify that the area at the bottom of the ramp was slippery and that he himself had fallen, but could not describe specifically where he fell or testify that he reported his fall to the Port, unless he also testified that his fall occurred prior to Nielsen's accident -- and Papetti could not so testify.
An examination of Papetti's testimony at trial indicates that any error in the court's ruling did not result in prejudice to the Port. Prior to eliciting Papetti's testimony about his fall, Nielsen laid a sufficient foundation to show that the conditions of Papetti's accident were substantially similar to those of Nielsen's fall. Papetti testified that there were algae growing at the bottom of the ramp, and that the surface of the dock was particularly slippery near the bottom of the ramp. He testified that he fell some time in October or November of 1994, around the same time of Nielsen's accident. Even assuming that a substantial similarity in conditions between Papetti's and Nielsen's accidents was not shown, Papetti's testimony did not likely affect the outcome of the trial, in light of the independent testimony of Wilkins and others, who also testified regarding the slippery area at the bottom of the ramp. Moreover, Wilkins himself testified, without the Port's objection, that he also had slipped on that same surface.
The Port also objects to what it describes as Nielsen's attempts during Papetti's testimony to elicit evidence that Papetti reported his fall to the Port. The following exchange occurred:
Q: Did you take any remedial action on this dock yourself to try to keep it clean or deal with this problem at the foot of the ramp?
A: Well, Mrs. Papetti, sitting on the bench there, she can tell you, if she gets to speak here, how many times we went to the office and reported it. Report of Proceedings 1/12/00 at 404.
The Port objected to th
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