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A "magic words" distinction has been developing in the Courts in the State of Hawaii which can affect the admissibility of evidence of prior accidents. Arguing that a prior accident put a defendant on notice of a foreseeable risk of harm seems to allow a broader range of proof than claiming that it showed a "dangerous condition". If the proof is offered to show a "dangerous condition", then proof of "substantial similarity" may be required. But if the evidence is offered to show that the prior accident should have attracted the defendant’s attention to something that could be dangerous, there seems to be a lower burden of similarity required. See, Estate of Klink v. State, 113 Haw 332 (2007), Gump v. Wal-Mart Stores, 93 Hawai'i 428, 449, 5 P.3d 418, 439 (App. 1999), affirmed 93 Hawai'i 417, 5 P.3d 407 (2000). |
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