Improperly-Admitted Redacted Police Accident Report Results in New Trial Following Defense Verdict in Personal Injury (Pedestrian Knockdown) Case

In car accident litigation, a police report often supplies useful information. But is it admissible in court? That was an issue addressed by the Second Department in Memenza v. Cole, 2015 NY Slip Op 06789 (App. Div. 2d Dept. Sept. 16, 2015).

The court summarized the law as follows:

Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule. Pursuant to CPLR 4518(a) [Ed.: link to statute], a police accident report is admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties. If information contained in a police accident report was not based upon the police officer’s personal observations, it may nevertheless be admissible as a business record if the person giving the police officer the information contained in the report was under a business duty to relate the facts to him [or her]. If the person giving the police officer the information was not under a business duty to give the statement to the police officer, such information may be proved by a business record only if the statement qualifies [under some other] hearsay exception, such as an admission. In other words, each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception. The proponent of hearsay evidence must establish the applicability of a hearsay-rule exception. (Emphasis added.)

In this case, plaintiff sued to recover damages for personal injuries allegedly sustained after being struck by a motor vehicle. At a jury trial, plaintiff testified that she was struck by defendant’s vehicle while walking across a street within a pedestrian crosswalk with the light in her favor; defendant testified that plaintiff was riding a bicycle at the time of the accident and that she was struck after she suddenly emerged from between parked cars.

In addition:

Over the plaintiff’s objection, the defendants were permitted to introduce into evidence a redacted police accident report which indicated, among other things, that the plaintiff was riding a bicycle at the time of the accident and that the accident occurred in the middle of the block. The police officer who prepared the accident report testified at trial that he did not have any independent recollection of his investigation of the subject accident, he could not recall whether he saw a bicycle at the scene after the accident, he could not recall the basis for identifying the location of the accident on the accident report, and he could not recall the source of any of the information that he set forth in the accident report.

The jury returned a verdict that the defendant was not negligent.

Applying the law, the appellate court held that the lower court committed non-harmless error in admitting the redacted police report:

Here, the record was insufficient to demonstrate that the disputed information contained in the redacted accident report was derived from the personal observations of the police officer, who, it is uncontested, did not witness the subject accident. The police officer, who had no personal recollection of his investigation after the subject accident, was unable to testify as to the source of the information contained in the accident report. Since the source of the information contained in the redacted accident report was not identifiable, it was error to admit it into evidence, inasmuch as it could not be established whether the source of the information had a duty to make the statement or whether some other hearsay exception applied.

The error in admitting the redacted police accident report was not harmless, as the information contained in the accident report bore directly on the ultimate issue to be determined by the jury. Furthermore, this error was compounded by the fact that the trial court denied the plaintiff’s attorney a full and fair opportunity to give his opening statement and to cross-examine the police witness. Under these circumstances, and in view of the trial court’s conduct toward the plaintiff’s counsel throughout the course of this trial, we deem it appropriate to remit the matter to the Supreme Court, Kings County, for a new trial before a different Justice.