Error to Show Photos of Vehicles in Minor PD Case

Here is another decision that makes it reversible error to show photos of vehicles involved in a wreck, point out minor property damage, and then argue that the plaintiff could not have been injured.

The New Jersey Appellate Division said this:

“Given the narrow field of dispute, the photographs served no apparent purpose other than to suggest the accident was low-impact and minor and, therefore, not the cause of plaintiff’s condition. For reasons already advanced, we find this inference impermissible absent an expert foundation. And lest there be any doubt as to defendant’s real purpose, counsel referred to the accident as a “fender bender” on three separate occasions in her opening and closing remarks. Clearly, this argument played a prominent role in the defense, especially in light of the polarity of medical views on causation, and was identical to that found objectionable in Davis. By the same token, nowhere in her argument did defense counsel explain to the jury how, based merely on the extent of property damage, a fact finder could assess the origination of plaintiff’s injury or whether any pre-existing condition she may have had was exacerbated by the impact. In any event, defense counsel’s argument clearly transgressed what was to be, at least according to the trial court’s tacit understanding, the limited use to which the photographs would be put. Even more significant, however, counsel’s commentary contradicted her own medical expert who opined no such connection or correlation between impact and injury exists. Under the circumstances then, we conclude that the introduction of the photographs without appropriate limiting instruction, when considered together with counsel’s uncured comments thereon, allowed the jury to speculate, unguided by any expert basis, as to the cause of plaintiff’s injuries, and thus created a clear capacity for an unjust result.”

The opinion includes authority pro and con from other jurisdictions.

The case is Brenman v. DeMello; read the opinion here.

Here is an earlier post on the same subject concerning a case out of Maryland.

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