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White v. Ohio Dept. of Transp.12/12/1990
ODOT and Alan Butler of Ross Township testified on their cutting of the foliage along Morgan-Ross Road on July 16, 1984, the day after the accident. On cross-examination by the estate, officer Smith testified that there was still a visibility problem after the July 16 foliage-cutting. The estate proffered further testimony from Officer Smith concerning conditions on July 17, two days after the accident. The trial court excluded this testimony because it was "too remote" in time and "the potential prejudice outweighs the probative value * * *." The court of appeals reversed and held that the evidence should be admitted because it "tended to impeach the testimony" of Crawford and Butler.
On appeal, Ross Township argues that this testimony is inadmissible under Evid. R. 407. That rule states:
"When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."
Here, the estate was able to present a great deal of other testimony which contradicted that of Crawford and Butler. The testimony describing conditions two days after the accident would be less probative than testimony describing the scene the day after the accident, due to the passage of time. After considering all of this, the trial court concluded that the balancing test of Evid. R. 403 favored exclusion. After reviewing the record, we cannot say that this was an abuse of discretion. Accordingly, we reverse the court of appeals on this issue. However, inasmuch as we must remand the action for further proceedings, we decline to direct the disposition of discretionary evidentiary rulings which may arise, and which may arise on a factual record which is different from the one we have reviewed.
The judgment of the court of appeals is affirmed in part and reversed in part, and the cause is remanded to the Court of Claims for a new trial on the wrongful death claim and on the issue of liability to the Whites.
Judgment affirmed in part, reversed in part, and cause remanded.
MOYER, C.J., HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
SWEENEY, J., dissents.
APPENDIX: DIAGRAM OF ACCIDENT SCENE
Page 1 2 3 4 Ohio Personal Injury Attorneys
Personal Injury Lawyers
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