Diagram of accident in police accident report should have been redacted before the report was admitted into evidence.

Diagram of accident in police accident report should have been redacted before the report was admitted into evidence, because the police officer did not see the accident, the eye witness who supplied the information was under no business duty to report the information to the officer, and the diagram bore directly on the issue of liability.

In an action for wrongful death and conscious pain and suffering action, the Second Department reversed plaintiff’s verdict and ordered a new trial on liability because the police accident report admitted into evidence contained an inadmissible diagram of the scene.  Plaintiff’s decedent was a pedestrian who was struck by a hit-and-run driver.  In the liability portion of the trial, an eye witness testified that he saw a motor vehicle strike the decedent, but he also testified that he did not see the decedent before the accident, did not see any vehicle come into contact with the decedent, and that the first time he saw the decedent he thought she had fallen out of the back window of an SUV.  Over MVAIC’s objection, the trial judge admitted into evident a police accident report without redacting a diagram showing the decedent crossing the street in front of the unidentified vehicle that allegedly struck decedent.  The liability-phase jury found the unidentified hit-and-run driver liable. During the damages phase of the trial, the jury rendered a verdict of $39,000 for wrongful death and $500,000 for conscious pain and suffering.

The Second Department reversed the verdict on liability and remanded for a new trial on liability, holding that the diagram because the information came from witnesses not engaged in police business when the diagram was drawn, and the information satisfied no other hearsay exception (there was no information that the eye witness was under a business duty to supply the information). The diagram was harmful error because it bore directly on the issue of liability, which was for the jury to decide.

Wynn v. Motor Veh. Acc. Indem. Corp, 2016 NY Slip Opn 10484 (2d Dep’t March 2, 2016)

http://www.courts.state.ny.us/reporter/3dseries/2016/2016_01484.htm