40 Misc. 3d 499
N.Y. Sup. Ct.2013Background
- On Dec 19, 2008 Shirley Miller was struck by Henry Lewis in New York City; Lewis left the scene and drove down the block.
- Lewis did not call 911 or assist Miller and instead placed numerous calls to Duane Reade employees after the accident.
- Defendants moved to preclude mention of Lewis’s postaccident conduct as irrelevant and inflammatory.
- Plaintiff argued postaccident conduct shows consciousness of guilt or fabrication.
- The court held that postaccident conduct can be admitted as consciousness of liability under a majority-rule approach, denied a categorical exclusion, and allowed limited inquiry focused on consciousness rather than fabrication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is postaccident conduct admissible on consciousness of liability? | Miller argues admissibility shows consciousness of liability. | Lewis argues it is irrelevant and prejudicial. | Admissible as consciousness of liability; not categorically excluded. |
| May postaccident conduct be used to show fabrication or conspiracy to fabricate? | Postaccident conduct could suggest fabrication. | Evidence of fabrication/conspiracy is speculative and improper. | Admissible only to consciousness of liability; further fabrication/conspiracy questioning is not allowed. |
Key Cases Cited
- People v. Yazum, 13 N.Y.2d 302 (N.Y. 1963) (consciousness of guilt in civil context with guarded probative value)
- Parrott v. Pelusio, 65 A.D.2d 914 (N.Y. App. Div. 4th Dept. 1978) (early authority on consciousness of liability in civil cases)
- Donohue v. Losito, 141 A.D.2d 691 (N.Y. App. Div. 2d Dept. 1988) (limited explanation of admissibility in civil actions)
- Birch v. Birch, 755 N.W.2d 144 (Iowa Ct. App. 2008) (majority permits postaccident conduct evidence as consciousness of liability)
- Rock v. McHenry, 115 S.W.3d 419 (Mo. Ct. App. 2003) (postaccident conduct as evidence of liability (broader rationale))
- Nolan v. Borkowski, 206 Conn. 495 (Conn. 1988) (evidence of property transfer to show consciousness of liability)
- Olofson v. Kilgallon, 362 Mass. 803 (Mass. 1973) (allowing postaccident conduct evidence to show liability)
- Harrington v. Sharff, 305 F.2d 333 (2d Cir. 1962) (illustrates use of postaccident conduct to show responsibility)
- State v. Williams, 190 N.J. 114 (N.J. 2007) (consciousness concepts in postaccident context)
- Kendall v. Hyannis Restorations Intl. Sales, Inc., 60 Mass. App. Ct. 1122 (Mass. App. Ct. 2004) (example of postaccident conduct evidence)
- Matbon, Inc. v. Gries, 288 S.W.3d 471 (Tex. Ct. App. 2009) (limits on postaccident evidence in punitive context)
- Clark v. Mask, 232 Miss. 65 (Miss. 1957) (proximity and relevance of postaccident conduct)