Personally, I find it a little odd when car accident victims begin swearing at the at-fault driver after an accident. I know people cause car accidents and I don’t have great expectations of those strangers.
But that is a minority view. The f-bomb is de jure at car accident scenes in Maryland (and probably in every town from here to Tripoli).
In Johnson v. Downing, federal District Court Judge Ellen L. Hollander weighed in on the admissibility of heated conversations between drivers after the accident. Plaintiff’s car accident lawyer filed a smart motion in limine to bar testimony at trial that the Plaintiff was cursing at the scene of the accident. This is smart: the jury is far less likely to like a plaintiff who is cursing at the scene of the accident. More importantly, a jury might conclude that the person who overreacts to the happening of an accident might excessively complain about their injuries. It is not a leap.
The defendant’s lawyer argued that this is a leap that the jury can and should be able to make because it “speaks to the nature and extent of Plaintiff’s damages.” Not a great argument but it is the best one the insurance company’s lawyer had. Defendant’s lawyer also threw out what is even more of a reach: the f-bombs after a car accident reveal plaintiff’s “state of mind, motivation and intention in bringing this instant lawsuit.” So, the argument goes, the fact that he was mad underscores that he is faking his injuries and filing a revenge lawsuit. That is just dumb.
Judge Hollander found that testimony on this was “wholly irrelevant and immaterial to the issues of causation and damages” and that, even if relevant, the potential of unfair prejudice to the plaintiff would outweigh the probative value of the claim.
In the immediate aftermath of a vehicular accident, it is not entirely unusual for someone involved in an accident to become upset or agitated. Even assuming that plaintiff cursed, as defendant contends, and recognizing that such conduct is certainly impolite, plaintiff is not on trial for the appropriateness of his conduct or his demeanor at the scene. Moreover, it is clear from the defendant’s version of events that the plaintiff did not engage in the protracted use of profanity. To the contrary, the defendant attributes two sentences to the plaintiff, each containing one curse word. Nor is it clear from the defendant’s deposition testimony that plaintiff even realized that the defendant’s young son was in the car when the plaintiff stood at the driver’s window. Perhaps most important, there is absolutely no basis for the defendant’s claim that the profane comments are relevant to show plaintiff’s motive in fabricating his claim of personal injuries, in retaliation for damage to plaintiff’s historic vehicle.