## Facts

- Irene Simon, an elderly pedestrian, fell on July 22, 1977 while walking on a sidewalk along Ocean Avenue in Kennebunkport, Maine, and broke her hip.
- She sued the Town of Kennebunkport under 23 M.R.S.A. § 3655, alleging her injury was proximately caused by a defect in the sidewalk’s design or construction.
- Two nearby business operators stated the sidewalk’s uneven, inclined condition had not changed from its construction in 1974–75 through the date of Simon’s fall.
- Simon offered testimony that many other people had stumbled or fallen at the same location during the prior two years, including observations of frequent falls under similar conditions.
- The trial court admitted evidence that the sidewalk’s physical condition had remained unchanged but excluded evidence of prior falls and stumbles.

## Issues

1. Whether the trial court erred by excluding evidence of prior similar falls or stumbles at the same location offered to show a defective or dangerous sidewalk and proximate causation.
2. What foundational showing of similarity is required before evidence of other accidents may be admitted, and whether such evidence is subject to discretionary balancing for unfair prejudice, confusion, or delay.

## Decision

- The Supreme Judicial Court of Maine vacated the judgment for the Town and remanded for further proceedings.
- The court held the exclusion of evidence of prior similar accidents was an abuse of discretion.
- The court ruled that evidence of other similar accidents may be admitted to prove a defective or dangerous condition, notice, or causation, if the circumstances are substantially similar and the probative value outweighs countervailing risks.

## Legal Principles

- Evidence of other similar accidents or occurrences can be relevant to prove the existence of a defective or dangerous condition, causation, and municipal notice.
- Admissibility requires a foundational showing that the other incidents occurred under circumstances substantially similar to those of the plaintiff’s accident; remaining differences generally affect weight, not admissibility.
- Similar-occurrence evidence is not categorically excluded; it is governed by relevance and a discretionary balancing of probative value against dangers such as unfair prejudice, confusion of issues, or undue delay.
- Lack of unfair surprise to the opposing party is a factor supporting admission when the party was aware of the prior incidents before trial.

## Conclusion

Because the proffered testimony described repeated falls at the same unchanged sidewalk area under similar conditions and directly bore on defect and causation, its exclusion was prejudicial error; the judgment for the Town was vacated and the case remanded for a new trial.


Simon v. Town of Kennebunkport, 417 A.2d 982 (Me. 1980)