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DTCI: Photo of car admissible to show lack of injury

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DTCI-Hehner-ButzOn Aug. 10, 2011, the Indiana Court of Appeals issued an opinion that addressed for the first time the issue of whether a photograph of vehicle damage is relevant and admissible to assist a jury in determining the extent of bodily injury in a trial arising from a motor vehicle accident. In Flores v. Guiterrez, No. 45A04-1101-CT-28, 2011 WL 3501865 (Ind. App. Aug. 10, 2011), the Court of Appeals affirmed the trial court’s admission of a photograph of the plaintiff’s vehicle following the motor vehicle accident at issue, in which he was rear-ended by the defendant. The photograph depicted a vehicle with “little to no damage.” Despite the fact that liability was already determined, the jury awarded the plaintiff zero damages.  

On appeal, the plaintiff claimed the photograph was inadmissible on the grounds that it was irrelevant to any determination of his bodily injury. The court and parties agreed there is no Indiana authority on this issue so the court looked to other jurisdictions for support. While the court noted some jurisdictions bar the admission of photographs of property damage for purposes of establishing injury absent expert testimony showing a causal link, the Court of Appeals sided with those jurisdictions that allow photographs of property damage to show injury even with no expert testimony. Those other jurisdictions (and the Court of Appeals of Indiana) believe the relationship between the force of impact, the resultant injury, and the extent of the relationship is a jury issue, and the jury should be permitted to view photographs of vehicles involved in an accident. The court ultimately agreed with the trial court and held that the damage (or lack thereof) to the plaintiff’s vehicle had some tendency to prove or disprove facts relating to his personal injury claim. In outlining its reasoning the court stated:

“Here, the trial court admitted Exhibit D [the photograph of the automobile] on the basis that it was properly authenticated and relevant to Flores’s [the Plaintiff’s] personal injury claim arising out of a car accident. Flores [the Plaintiff] admitted during his testimony that Exhibit D truly and accurately depicted his vehicle as a result of the impact. Under Indiana Evidence Rule 401, relevant evidence is ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ (Emphasis supplied). In admitting Exhibit D, the trial court concluded that the damage or lack thereof, to Flores’s vehicle had some tendency to prove or disprove facts relating to his personal injury claim. We agree. Flores presented no expert testimony to suggest that, under these facts, no such tendency existed. To the contrary, his own expert, Dr. Jones, testified that he had inquired into vehicle damage when assessing Flores’s condition immediately following the accident. While additional testimony by Dr. Jones suggested that a direct relationship between damage and injury does not always exist, he did not indicate that such a relationship was nonexistent under these circumstances.” Flores v. Guiterrez, No. 45A04-1101-CT-28, 2011 WL 3501865, at 5 (footnote omitted).

The Court of Appeals also noted in a footnote that while “the link at issue here is between minimal property damage and minimal injury, this commonsense relationship may also be relevant to link significant property damage and serious injury.” Id. n.3.

Pursuant to this opinion, a photograph of vehicle damage is therefore likely to be considered relevant and admissible to the issue of bodily injury in a personal injury action, unless the party seeking to exclude the photograph has expert testimony tending to show the lack of a direct relationship between the damage and the injury.•

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Jim Hehner and Ashley Arthur Butz practice with the law firm of Hehner & Associates, LLC in Indianapolis. Mr. Hehner is a director of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the authors.

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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