Public Policy Exclusions Flashcards
Explain the admissibility of evidence of liability insurance and any exceptions to the general rule.
Evidence of a party’s insurance against liability (or lack thereof) is not admissible to show whether the party acted negligently or otherwise wrongfully (meaning, it is inadmissible to prove the party’s fault or absence of fault).
However, it may be admissible for other relevant purposes, such as:
(1) To prove ownership or control, if disputed,
(2) To impeach a witness (usually to show their bias), or
(3) As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (for example, “Don’t worry, my insurance will pay it off”)
HYPO: (1) Gary falls down a well on Ted’s property, contending that the well was impossible to see because of overgrown foliage. Ted denies that he was negligent and also defends, in the alternative, on the ground that he did not own the land in question. Should Gary be allowed to introduce evidence that Ted carried a homeowner’s liability insurance policy on the land?
(2) Same case. Marla, a witness called by Ted, testifies that she had been on Ted’s property just prior to the accident and there was no foliage covering the well. May Gary show, during cross-examination of Marla, that she is a claims adjuster employed by the company that issued the homeowner’s policy to Ted?
(1) Yes. The liability insurance policy could be used to show that Ted owned and had control of the property, and since Ted has argued in the alternative that he does not own the land, he has put his ownership of the land in dispute. Thus, evidence of the insurance policy is admissible, but only to show his ownership of the land (not liability).
(2) Yes. The liability insurance policy is being offered to show Marla’s bias, since she may be claiming there was no foliage to prevent her company from having to pay out on the claim. Thus, evidence of the policy is admissible, but only to show Marla’s bias (not Ted’s liability).
Explain the admissibility of evidence of subsequent remedial measures and any exceptions to the general rule.
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.
However, it may be admissible for some other relevant purpose, such as:
(1) To prove ownership or control, if disputed,
(2) To rebut a claim that a precaution was not feasible, or
(3) To prove that the opposing party has destroyed evidence
HYPO: Penelope bought a cup of coffee at Dante’s Coffee Inferno and scalded her tongue because the coffee was too hot. She sues Dante’s in negligence. Dante’s denies it was negligent.
(1) At trial, Penelope seeks to introduce evidence that after the accident, Dante’s installed new thermostats on its coffee-brewing equipment. Penelope contends that this conduct is an admission by Dante’s that better safety controls were feasible. Admissible?
(2) Same case, except now assume that Penelope contends that Dante’s negligence consisted of the failure to place warnings on its coffee cups indicating that its coffee was too hot for human consumption. Dante’s defends, in part, on the ground that it was impossible to affix labels to its coffee cups. Penelope seeks to introduce evidence that after the accident, Dante’s began to use cups that were pre-printed with warnings. Admissible?
(1) No. Dante’s has not made a claim that safety controls were not feasible, and evidence of subsequent remedial measures is only admissible, in part, to rebut a claim that a precaution was not feasible. Thus, this evidence is inadmissible.
(2) Yes. Here, Dante’s has claimed that the precautionary measure of a warning label was impossible, and Penelope is rebutting this claim with evidence that Dante’s was able to introduce a precautionary measure shortly after the accident. Because this is being used as rebuttal evidence, it is admissible.
HYPO: Miguel sues Universal Motors Inc. for injuries suffered in an auto accident. Miguel claims that a defect in the brakes of the Universal car caused the accident. Defense: “No defect.” Miguel seeks to introduce evidence that after the accident, Universal (1) changed the design of the brakes on its cars, and (2) sent a defect notice to purchasers urging them to bring their vehicles to service dealers for brake replacement. Admissible to prove the existence of a defect in the brakes at the time of Miguel’s accident?
(1) No. Subsequent remedial measures may not be introduced as evidence that a defect exists. Here, Universal has not disputed ownership or control or the feasibility of any precautionary measure, and there is nothing in the facts on this claim to indicate the Universal attempted to destroy evidence. Thus, the evidence is inadmissible.
(2) No, for the same reasons as (1).
Explain the admissibility of evidence regarding civil settlements and settlement negotiations and any exceptions to the general rule.
Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case to:
(1) prove or disprove the validity or amount of a disputed claim, or
(2) impeach a witness by prior inconsistent statement or contradiction.
Conduct or statements made in the course of negotiating a compromise - including direct admissions of liability - are also inadmissible for these purposes.
However, evidence of settlement is admissible to impeach a witness on the ground of bias.
NOTE: The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability or (2) amount.
HYPO: Hans and Franz were simultaneously struck by a truck being driven by Arnold. Hans and Franz both filed suit against Arnold, each seeking $100,000. Arnold denied all allegations.
(1) Before trial, Hans settled with Arnold for $50,000. When Franz’s case went to trial, Franz sought to introduce the Hans-Arnold settlement as evidence that Arnold, in effect, acknowledged his fault. Admissible?
(2) Before Franz’s case went to trial, Franz and Arnold met to discuss possible settlement. During the discussion, Franz said, “I’ll accept $50,000 in settlement. The fact that I was jay-walking may confuse the jury.” Arnold declined. At trial, should Arnold be allowed to introduce (a) Franz’s offer to settle and (b) Franz’s admission that he was jay-walking?
(3) At the trial of Franz’s case, Arnold called Hans as a witness, and Hans testified to the effect that Arnold did not drive negligently. On cross-examination of Hans, should Franz be allowed to prove the Hans-Arnold settlement?
(1) No. Evidence of settlement is not admissible to prove the validity of a disputed claim or liability.
(2) No to both. For (a), offers to settle may not be used to disprove the validity of a claim. For (b), statements made in the course of negotiating a settlement are inadmissible.
(3) Yes. Here, Franz could use the settlement as evidence of bias, essentially alleging that Hans has been “bought off” by Arnold for his testimony.
HYPO: A’s and B’s cars collided. B immediately ran up to A and said, “Look, I’ll settle with you for $100,000 if you don’t sue.” Should A be allowed to introduce B’s statement against him at a subsequent trial?
Yes. At the time the statement was made, there was no indication that A intended to make a claim. There is no dispute yet, so the public policy exclusion for settlements and negotiations does not apply.
HYPO: A’s and B’s cars collided. After the collision, A sent a letter to B saying, “The accident was all your fault. I demand that you pay my damages in the amount of $100,000.” B called A on the phone and said, “You’re right about the accident, and I owe you the full $100,000 you’re asking for. But you know how fickle juries can be. If you don’t accept $50,000 now, you’ll have to sue me to get anything.”
(1) Should A be allowed to introduce B’s statements against B at a subsequent trial?
(2) What if B had said, “It was all my fault, but you didn’t suffer $100,000 in damages”?
(1) Yes. At the time of B’s statement, A had a claim, but B not disputed the validity of the claim, B’s liability, or the amount of the claim, so the public policy exclusion does not apply.
(2) No. Here, B is disputing the amount of the claim. Even though B has agreed regarding their liability, B only needs to dispute either liability OR amount for the public policy exclusion to apply.
True or false: conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are admissible when offered in a criminal case.
True. For example, a defendant’s admissions of fact during settlement negotiations with a securities enforcement agency would be admissible against the defendant in a related criminal trial.
Explain the admissibility of evidence regarding plea discussions in criminal or civil cases and any exceptions to the general rule.
Generally, the following are inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:
(1) Offers to plead guilty;
(2) Withdrawn guilty pleas;
(3) Actual please of nolo contendre (“no contest’); or
(4) Statements of fact made during any of the above plea discussions
However, an actual guilty plea that is not withdrawn is generally admissible in related litigation as a statement of an opposing party.
Explain the admissibility of payments of and offers to pay medical expenses, and any exceptions to the general rule.
Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury.
However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are admissible.
HYPO: Donna’s car hit pedestrian Pablo. Donna immediately ran to Pablo and said, (1) “Don’t worry about a thing. I’ll pay for your hospital bills. (2) I’m sorry I ran the red light.”
Is either statement admissible against Donna?
(1) No. Offers to pay medical expenses are generally inadmissible.
(2) Yes. Accompanying statements of fact or admissions to an offer to pay medical expenses are admissible.
