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Washburn v. Beatt Equipment Co.11/25/1992
nderstand it. . . .
VRP vol. 6, at 119.
Defense counsel thought the photos did not cover the whole recovery period, and expressed his concern that these photos were "pretty much the same thing over and over". VRP vol. 6, at 119. However, when plaintiff's counsel pointed out that the photos in fact were taken over 18 months, defense counsel said: "I stand corrected." VRP vol. 6, at 120.
A fair and accurate reading of the record shows that defense counsel's only tentative objection was that the photos
not be repetitious. His stated belief was that the 78 photos were "pretty much the same thing . . . it's mostly early on, as I understand it." VRP vol. 6, at 119. It was solely in that context he expressed the thought, not an objection, that "we don't need 78 terribly grizzly [ sic ] photos." VRP vol. 6, at 119.
Defendant's present representations about its objections to the photos is a gross distortion of the record. Any accurate reading of the record demonstrates that the 78 photographs of plaintiff came in without objection. However, even if the record could be read to show an objection, it could only be on the ground that the photos were "grisly" and possibly repetitious.
There was no error.
In theory, all relevant evidence is admissible. ER 402. However, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . or needless presentation of cumulative evidence." ER 403. Admission or rejection of photographic evidence lies within the sound discretion of the trial court. Toftoy v. Ocean Shores Properties, Inc., 71 Wash. 2d 833, 836, 431 P.2d 212 (1967); Mason v. Bon Marche Corp., 64 Wash. 2d 177, 178, 390 P.2d 997 (1964). The trial court's ruling will not be disturbed on appeal in the absence of a showing of abuse of that discretion. Mason, at 178; see generally Brouillet v. Cowles Pub'g Co., 114 Wash. 2d 788, 801, 791 P.2d 526 (1990) (trial court rulings on admissibility of evidence generally reviewed under an abuse of discretion standard).
The fact that the photographic depiction may be gruesome or unpleasant does not render the evidence inadmissible. Mason, at 178; see 5 K. Tegland, Wash. Prac., Evidence ยง 95, at 46 (3d ed. Supp. 1992). Photographs of injuries may be gruesome precisely because they accurately depict what has happened to plaintiff. See Elliot v. Kesler, 799 S.W.2d 97, 104 (Mo. Ct. App. 1990) (admitted photographs of accident scene and plaintiff's injuries were gruesome,
but only because the accident itself was gruesome and not because of any embellishment permitted by trial court).
The photographs are clearly relevant. The condition of plaintiff's body immediately after the explosion is related to plaintiff's damages. See Traver v. Packaging Indus. Group, Inc., 242 N.J. Super. 574, 578, 577 A.2d 876, 877 (1990). The condition of an injured person's body obviously changes, and photographs can preserve a record of the original condition. See K. Hughes & B. Cantor, Photographs in Civil Litigation 490 (1973). In burn cases, grafting of skin and eventual healing (to the extent it occurs) will improve the appearance of burned areas; photographs taken shortly after the injuries are incurred will record and preserve the pregrafting, prehealing condition of plaintiff. K. Hughes & B. Cantor, at 492. A number of the photographs here were taken 5 days after the explosion and others within the first month. They showed the co
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