Opinion
2013-03-20
Shirley MILLER, by Yehuda MILLER and Malka Miller, Guardians of the Person and Property of Shirley Miller Pursuant to the Laws of the State of Israel, Plaintiffs, v. Henry F. LEWIS, Duane Reade Shareholders, LLC, Duane Reade Inc., & Duane Reade General Partnership, Defendants.
Evan Torgan Esq., Torgan Cooper & Aaron, P.C., New York, for plaintiff. Eric Berger Esq., Cozen O'Connor, New York, Mark Kagan Esq., Law Clerk to the Hon. Leon Ruchelsman, Brooklyn, for defendant.
Evan Torgan Esq., Torgan Cooper & Aaron, P.C., New York, for plaintiff. Eric Berger Esq., Cozen O'Connor, New York, Mark Kagan Esq., Law Clerk to the Hon. Leon Ruchelsman, Brooklyn, for defendant.
LEON RUCHELSMAN, J.
The defendants have moved seeking to prevent the plaintiff from introducing evidence of post accident conduct of Henry Lewis. The plaintiff opposes the motion arguing such introduction is proper as admissions by conduct and as evidence of fabrications. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
On December 19, 2008 the plaintiff Shirley Miller was hit by a truck driven by defendant Henry Lewis at the intersection of Ninth Avenue and West 48th Street in New York County. Henry Lewis did not stop and exit the truck immediately following the accident. Rather, he drove some distance down the block, stopped there and proceeded to place numerous calls from his cell phone to various individuals working for his employer Duane Reade. He never called 911 and did not assist the plaintiff in any way. The defendants seek to preclude any mention of Lewis' post accident conduct since it is irrelevant, does not contain any evidence of negligence and will only serve to inflame the jury. The plaintiff counters such evidence should be admissible to demonstrate Lewis' “consciousness of guilt” or as evidence of fabrication.
Conclusions of Law
While the use of evidence demonstrating a consciousness of guilt may be introduced to support a conviction in a criminal case ( see, People v. Yazum, 13 N.Y.2d 302, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963] ), there is scant authority for such evidence in civil cases. Richardson (§ 4–611, Eleventh Addition, 1995) does note briefly that “evidence of consciousness of guilt is admissible in a civil action and is accorded the same guarded probative value” ( id.). However, the cases cited there ( Parrott v. Pelusio, 65 A.D.2d 914, 410 N.Y.S.2d 190 [4th Dept., 1978] and Donohue v. Losito, 141 A.D.2d 691, 529 N.Y.S.2d 813 [2d Dept., 1988] ) do not adequately explain the nature of such evidence, their probative value, prejudicial effect and the rationale permitting its admission. Indeed, the lack of any subsequent opinions drawing upon those cases, for the purposes sought here, attest to their limited precedential value.
Many other jurisdictions have considered the question whether post accident conduct may be introduced to demonstrate what has been more aptly termed “consciousness of responsibility” ( see, Birch v. Birch, 755 N.W.2d 144 [Court of Appeals of Iowa 2008] ) or “consciousness of liability” ( see, Rock v. McHenry, 115 S.W.3d 419 [Missouri Court of Appeals, Western District 2003] ). In fact, almost one hundred years ago it was already observed there was a conflict of opinion whether post accident conduct could be admitted to demonstrate consciousness of liability. In the March 1918 edition of the Yale Law Review the author discussed a Rhode Island case that permitted the introduction of evidence the defendant had transferred property to his wife following an accident involved with his jitney. The case itself had noted the conflict regarding this issue but the court held such evidence was admissible. The article entitled “EVIDENCE—ADMISSIONS—TRANSFER OF PROPERTY AS ADMISSION OF LIABILITY” (27 Yale law Journal 712 [1918] )explained that “there is a conflict of authority on the admissibility of such evidence. It is true that a transfer of property might be made without any consciousness of liability, as for example, simply to avoid the inconvenience of having the property tied up during a threatened suit. But on the other hand, the defendant has an opportunity to explain his conduct, and while the court should no doubt proceed with caution, and each case should be considered on its own facts, it would seem that in many cases such evidence might have sufficient probative value to justify its admission under proper instructions” ( id.). The conflict has continued, although the majority of jurisdictions freely permit such evidence. Thus, for example in Birch, supra decided five years ago, the court, citing earlier authority as well as current trends, stated that at least twelve states permit such evidence while only four exclude it. Of course, this court cannot decide the matter without thoroughly exploring the reasons for both admission and exclusion, policy considerations and other relevant factors. Moreover, the precise nature of the post accident conduct is of no particular moment when deciding upon its admissibility other than to consider any prejudice that may result.
Thus, as already noted, evidence of flight or of transfers of property following an accident or of attempting to persuade others to forget' damaging conduct ( see, Kendall v. Hyannis Restorations International Sales, Inc., 60 Mass.App.Ct. 1122, 2004 WL 513658 [Appeals Court of Massachusetts 2004] ) or inconsistent or false statements ( McNamara v. Honeyman, 406 Mass. 43, 546 N.E.2d 139 [Supreme Judicial Court of Massachusetts, Suffolk 1989] ) can all be introduced as evidence supporting a consciousness of liability.
Thus, the cases present, essentially, two grounds upon which such evidence would be admissible. The first, narrower ground, is the “ logical” connection between post accident conduct and the accident itself where the conduct is contrary to law. Therefore, where leaving the scene of an accident is prohibited then such conduct of flight “permits an inference of consciousness of lack of care and of liability for the occurrence” ( see, State v. Williams, 190 N.J. 114, 919 A.2d 90 [Supreme Court of New Jersey, 2007] ). This rationale was echoed in Birch, supra where the court held that the failure to remain at the scene, provide information and render assistance, all contrary to law “was highly relevant to show a ‘consciousness of responsibility’ ” ( id ).
Other courts offer a rationale far more broadly by simply noting that post accident conduct such as leaving the scene, even if not illegal “could properly be considered as some further proof” of liability ( Olofson v. Kilgallon, 362 Mass. 803, 291 N.E.2d 600 [Supreme Judicial Court of Massachusetts, Suffolk 1973] ). Again, in Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 [Supreme Court of Connecticut 1988] the court stated that evidence of a transfer of property is admissible “to show a consciousness of liability and a purpose to evade satisfaction of it” ( id.).
The jurisdictions that prohibit such testimony generally hold that such evidence “bears no proximate relation to the cause of the collision” ( see, Schlosberg v. Doup, 187 Ark. 931, 63 S.W.2d 337 [Supreme Court of Arkansas 1933] ) and that “no question of negligence is involved in the failure” to stop and comply with any statute requiring such conduct ( see, Clark v. Mask, 232 Miss. 65, 98 So.2d 467 [Supreme Court of Mississippi 1957] ).
There can be little dispute that conduct following the accident indeed bears little if any “proximate relation” to the cause of the accident and the plaintiff is not arguing otherwise. Rather, the post conduct evidence is being sought to argue that Lewis believed in some measure that he was “responsible for the mishap” ( see, Harrington v. Sharff, 305 F.2d 333 [2d Cir.1962] ). A categorical exclusion of such evidence as espoused by the minority position is too restrictive and prevents the jury from examining the defendant's conduct with a more expansive lens. Equally untenable is another minority position equating post accident conduct of, for example, leaving the scene without stopping, which is defined as wilful and wanton' as “some evidence of a wilful and wanton state of mind at the time the accident” ( see, Peterson v. Henning, 116 Ill.App.3d 305, 72 Ill.Dec. 203, 452 N.E.2d 135 [Appellate Court of Illinois, 4th District 1983] ). A further minority position, not relevant in this case, permits post accident conduct only where the plaintiff seeks exemplary or punitive damages ( see, Matbon Inc., v. Gries, 288 S.W.3d 471 [Court of Appeals of Texas, Eastland 2009] ).
Considering the balanced position adopted by the majority of jurisdictions that have considered the issue, the evidence sought to be admitted, namely that Lewis continued to drive further down the block, failed to call 911 and placed and received numerous phone calls from Duane Reade employees are all admissible as evidence of Lewis' consciousness of liability ( see, Johnson v. Ingalls, 95 A.D.3d 1398, 944 N.Y.S.2d 654 [3rd Dept., 2012] ).
The defendants argue that such evidence is irrelevant, prejudicial and not even evidence of any improper behavior. It is true that Lewis' flight' was not definitive in the sense that he never presented himself. It is also true that Lewis, having presented himself, either with other Duane Reade employees or by himself shortly after the accident would probably not have violated any statute prohibiting leaving the scene of an accident ( see,Vehicle and Traffic Law § 600 and People v. Hampton, 22 Misc.2d 432, 197 N.Y.S.2d 959 [County Court Westchester County 1960] holding that a thirteen minute delay between the accident and reporting the accident was not a violation of the statute). However, those factors argue in favor of permitting such evidence not against it, since as noted, the inferences are tempered. Moreover, the precise conduct permitted in this case is not so prejudicial as to render it wholly inadmissible.
Further, the court is not persuaded by some cases which seem to permit evidence of post accident conduct only where the evidence is so compelling as to rule out or argue any alternative explanation ( see, Rock v. McHenry, supra ). That approach deprives the inferences mentioned and reaches the conclusion that should best be left to the trier of fact after both sides present their arguments and offers of proof. Indeed, the defendants, of course, are free to mitigate the impact of such evidence and have even argued as such in their motion papers and at oral argument. In any event, the motion seeking a categorical exclusion of such evidence is denied.
Concerning the plaintiff's argument the evidence is admissible as evidence of fabrication and alternatively should be admitted for that purpose, it is doubtful an additional rationale is even needed. However, a few comments concerning the scope of such questioning is now proper.
The plaintiff argues that Lewis, and Duane Reade employees as well, “fabricated his version of the happening of the accident” ( see, Plaintiff's Memorandum in Opposition, page 11). However, there is no evidence to support that accusation. Lewis has consistently and continuously maintained that the wheel of his truck ran over the plaintiff. Whether or not that is disputed and whether or not Lewis' own counsel will argue such has really no bearing upon the admissibility of Lewis' post accident conduct. While Lewis might have maintained a motive to fabricate as argued by plaintiff there is no evidence that Lewis engaged in such post accident conduct to provide an “ opportunity to fabricate a favorable version of the happening of the accident” ( id.). Equally speculative is the plaintiff's assertion that other Duane Reade employees arrived at the scene to conspire with Lewis to present a comprehensive version of the accident that was not true. Likewise, the mere fact that Duane Reade personnel arrived at the scene even before the police, if true, does not further corroborate these speculative theories. Zealous employees or concerned supervisors that arrived quickly do not reasonably permit any inferences of fabrication or a conspiracy concerning the happening of the accident.
Therefore, the post accident conduct of Lewis may be introduced into evidence as noted tending to establish consciousness of liability. Any further speculative questioning concerning allegations of fabrication or conspiracy to fabricate are speculative and may not be explored at trial.
So ordered.