Car wrecks happen all the time. Victims sadly sometimes find themselves on the receiving end of multiple accidents in Atlanta! In a recent decision issued by the Georgia Court of Appeals, the question needing an answer was whether a trial court had erred by not letting a motorist introduce a police report concerning a collision that the other driver had a few years before his collision with the defendant.
Insurance companies love to point the blame for victims’ injuries to previous accidents. When insurance companies have an opening to shift causation issues to other previous events, the companies fall over themselves to do it.
Background
Two motorists were driving on I-20 westbound in Georgia when one rear-ended the other. The plaintiff testified that he experienced back pain after the collision that gave rise to this case, which happened in 2018.
But he also acknowledged that he was injured in a 2016 car accident. The defendant asked the plaintiff if the police were called after that accident, and he said he couldn’t recall. The defendant then sought to introduce into evidence a certified copy of the motor vehicle accident report from the 2016 incident. The plaintiff objected to the extent that the defendant sought to introduce the narrative contained in that report, arguing that it was hearsay.
Hearsay is an out-of-court statement offered to prove the truth of what it asserts, which is then offered in evidence to prove the truth of the matter. The issue with hearsay in a trial is that when the individual being quoted isn’t present, you can’t establish credibility or cross examine them.
The defendant argued that the entire report was admissible under O.C.G.A. § 24-8-803(6), as a record or regularly conducted activity, or § 24-8-803(8), as a public record or report. But the trial court sustained the plaintiff’s objection, ruling that although the defendant could ask the plaintiff to review the report to refresh his recollection of the accident, the narrative itself couldn’t be tendered as evidence. The plaintiff was then provided a copy of the report.
The defendant asked him, “Isn’t it true, that after that accident in 2016 that you told the officer that you had back pain?”
The plaintiff responded that he couldn’t remember, and, although the defendant tried to ask more questions, the trial court ruled that he needed to accept the answer and move on.
The defendant next introduced a photo of the plaintiff’s car after the 2016 accident and questioned him about his injuries from that accident. The plaintiff testified that he suffered a rip in his small intestine, bruising on his hip, a dislocated elbow, and pain in his hip. He also said that his medical records from the 2016 accident, which were admitted into evidence, stated that the force of impact was severe, that he experienced a loss of consciousness and sustained injury to his head, neck, and chest, and that he complained of pain in his neck and hip.
The defendant proffered a copy of the police report for the record, claiming that the report was self-authenticating under an exception to the rule against hearsay.
The trial court again ruled that the report was inadmissible, stating, “I don’t agree with you. I think you need to have the police officer here available for cross-examination[.]”
The jury returned a verdict in favor of the plaintiff. The defendant appealed from the trial court’s judgment, arguing, among other things, that the court erred by not allowing him to introduce a police report that dealt with the 2016 car accident.
The Defendant Appeals
On appeal, the defendant argued that he should have been permitted to introduce the police report into evidence because the report was admissible under § 24-8-803(8), and the statement documented in the narrative — specifically, the plaintiff’s complaint of “severe pain” in his chest, back, and neck — was a present sense impression within the meaning of O.C.G.A. § 24-8-803(1).
Pursuant to O.C.G.A. § 24-8-803(8), there is an exception to the hearsay rule for public records and reports. O.C.G.A. § 24-8-803 provides that
The following shall not be excluded by the hearsay rule … (8) Public records and reports. Except as otherwise provided by law, public records, reports, statements, or data compilations, in any form, of public offices, setting forth: … (B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report … or (C) In civil proceedings … factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness[.]”
Under this provision, a police report is admissible in a civil case to the extent it documents observations made by the officer himself. To the extent a police report documents hearsay statements made by another declarant to the officer, pursuant to O.C.G.A. § 24-8-805, “hearsay within hearsay is admissible only if each part of the combined statements conforms with an exception to the hearsay rule.”
What is a “Present Sense Impression”?
The defendant contended that the plaintiff’s complaint of back pain was a present sense impression within the meaning of O.C.G.A. § 24-8-803(1), which provides that “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter” shall not be excluded by the hearsay rule. But Presiding Judge Doyle of the Georgia Court of Appeals explained that in determining if a driver’s complaint of back pain after a car accident can qualify as a present sense impression, there was no evidence establishing the circumstances surrounding the plaintiff’s declaration of pain in this case. For example, there was no indication of how soon after the collision he complained of pain nor whether he made the declaration spontaneously.
Moreover, Judge Doyle said that even if the trial court erred by refusing to allow the defendant introduce this evidence, that error was harmless in light of the other evidence in the case. The defendant contended that by excluding this evidence, the trial court severely undercut his ability to show the jury that the plaintiff had back pain before the 2018 collision, a fact that would weigh into the jury’s review of his medical records and claims for future pain and suffering. But the defense introduced the plaintiff’s medical records from the 2016 accident, and the plaintiff acknowledged that he sustained multiple injuries, including to his head, neck, chest, and hip, in that accident.
Consequently, the Court of Appeals found that the exclusion of this evidence didn’t prevent the defendant from demonstrating that the plaintiff experienced serious injuries in an earlier accident, and under the circumstances of this case, any error in excluding this evidence was harmless. Arnold v. Liggins, 2023 Ga. App. LEXIS 349 *; 2023 WL 4246123 (Ga. App. June 29, 2023).
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