Most of the evidence presented during the trial of a Buffalo personal injury lawsuit will be regarding things that did happen, such as how a car accident unfolded or how a particular medical procedure was performed. Occasionally, however, it is helpful when a witness can testify regarding a party’s failure to perform some action.
Whether such evidence is admissible hinges upon the specific facts surrounding the witness’s testimony. While it is easy to establish that somebody observed something, a failure to observe can be much more complicated. Generally, before allowing such testimony, the court must be comfortable that the testimony actually establishes a failure to perform an action and is not simply the result of the witness’s failure to observe the performance.
As a result, where the witness was in relation to the event and what he or she was able to see or hear from that position are crucial facts in the admissibility of such evidence. If, however, the court is comfortable that the witness was in a position to observe the act if it had been performed, the court may also allow the witness to testify that from where they were positioned, they would have been able to see or hear the action.
If you have suffered a personal injury, we would be happy to answer your questions. Please call us at 716-542-5444.
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