The Rogak Report: 02 June 2006 ** Medical Records - Hearsay **
- PLAINTIFF'S STATEMENT TO EMT ABOUT ACCIDENT, WRITTEN IN AMBULANCE
REPORT, IS ADMISSIBLE AS PRESENT SENSE IMPRESSION
Phyllis Bayne v City of New York, 2006 NY Slip Op 04225 (2d Dept 2006)
(Index No. 5344/01)
Plaintiff appealed from a judgment of the Supreme Court, Queens
County, which, upon a jury verdict in favor of the defendant on the
issue of liability, dismissed the Complaint.
The plaintiff sustained injuries on August 13, 2000, when she fell on
a sidewalk abutting a superette located at 126-02 101st Avenue,
Queens. The plaintiff alleged that sidewalk defects caused her
accident and injuries. The jury verdict was in favor of the sole
defendant, the City of New York. The jury, while finding that the
defendant received prior written notice of a specific condition at
the site of the accident, answered, "no," by a vote of five out of
six, to the question: "Did the plaintiff prove that the sidewalk
where [she] claims she fell was not safe." The Supreme Court denied
the plaintiff's motion to set aside the verdict, but the Appellate
Division reversed, and set the verdict aside.
"The Supreme Court erred in precluding testimony from Salome Singh,
who would have testified to the condition of the sidewalk where the
accident occurred. The court precluded her testimony on the ground
that Singh was not an expert. One need not be an expert, however, to
describe the physical condition of an area surrounding an occurrence,
such as a sidewalk. Singh's proposed testimony was relevant and
material to the issue of whether the sidewalk was unsafe."
"The Supreme Court also precluded witness Michael Miller, an
Emergency Medical Services worker, from testifying, on hearsay
grounds, that upon his arrival at the scene, the plaintiff stated
that she had tripped and fallen. The plaintiff's statement was
included in an ambulance call report which was also precluded. The
preclusion of this evidence constituted error. The plaintiff's
statement to Miller was admissible as a present sense impression, and
relevant to issues of whether the plaintiff had 'tripped'
or 'slipped' on the sidewalk. The statement in the ambulance call
report would also have been admissible as a present sense impression
had the witness been permitted to lay the business record foundation
for the document (see CPLR 4518[a])."
"The verdict was based on the plaintiff's failure at trial to prove
that the sidewalk was unsafe. The trial court's errors were not
harmless as the precluded evidence, if allowed, may have had a
substantial influence upon the jury verdict and the cumulative effect
of the errors warrants a new trial."
Comment: How do we reconcile this decision with the general rule that
statements made by a plaintiff in a hospital record are not
admissible unless they relate to treatment? I suppose, for one
thing, that in this case the person to whom the statement was made
(the EMT technician) was available to testify as to what was said to
him. The problem with statements in a medical record usually
revolves around trying to get them into evidence based on the records
alone. Also, it is usually the defendant who is trying to get the
statement in the medical record into evidence as an admission against
interest, because it usually is a statement damaging to the
plaintiff's case. I think it is a bit of a stretch to categorize a
plaintiff's statement that she "tripped" as opposed to "slipped" as
a "present sense impression," but that's what the court said. I can
only hope that if the plaintiff had said "I tripped over my
shoelaces," that would be admissible too.
As for the testimony of a lay person about the condition of the
sidewalk, I'm scratching my head over that. Why would a plaintiff
want to introduce the testimony of a lay witness about that, instead
of an expert? Certainly a lay witness can give a description of what
she saw, but how could a lay witness say that a condition was
dangerous? Lay witnesses generally can't give opinions unless it is
an opinion within the ken of an ordinary person. And yet, here the
plaintiff gets a new trial.