BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 2804 A
Author: Assemblymember Papan B
As Amended May 4, 2000
Hearing Date: June 20, 2000 2
Evidence Code 8
GWW:cjt 0
4
SUBJECT
Admissibility of Evidence: Statements of Apology
DESCRIPTION
This bill would make portions of a statement, writing or
benevolent gesture expressing sympathy to a person involved
in an accident, or to the person's family, inadmissible as
evidence of liability in a civil action. However, a
statement of fault, which is part of or in addition to any
benevolent statement, writing or gesture, would not be
inadmissible.
BACKGROUND
Some legal commentators have recently opined that an
apology is underrated and underused as a tool in legal
settings. For example, the author of a recent December
1999 ABA Journal article on the issue states that an
apology "is too often overlooked as a means for helping to
resolve disputes, for serving as a lubricant to advance
settlement talks, and for contributing to a solution that
looks to the client's needs," and that "despite the
distinctly human need to convey and receive expressions of
regret and contrition, there are legal considerations,
including the concern that an apology may be tantamount to
an admission of guilt or liability." (Steven Keeva, "Does
Law Mean Never Having to Say You're Sorry?" ABA Journal at
pp. 64-65 (Dec. 1999).)
At least two states have adopted statutes that bar the
(more)
AB 2804 (Papan)
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admissibility of "benevolent gestures" or communications
that expresses sympathy in connection with accident-related
injuries. Massachusetts law, upon which this bill is
modeled, provides that: "Statements, writings or benevolent
gestures expressing sympathy or a general sense of
benevolence relating to the pain, suffering or death of a
person involved in an accident and made to such person or
to the family of such person shall be inadmissible as
evidence of an admission of liability in a civil action.
(Mass. Annotated Laws, Ch. 233, Section 23D (Lexis 1999).)
Texas also recently enacted a statute providing that "[a]
court in a civil action may not admit a communication that
expresses sympathy or a general sense of benevolence
relating to the pain, suffering, or death of an individual
involved in an accident." (Texas Civil Practice and
Remedies Code Section 18.061 (West 2000).) Texas,
however, also provides that "a communication, including an
excited utterance ?, which also includes a statement or
statements concerning negligence or culpable conduct
pertaining to an accident or event, is admissible to prove
liability of the communicator.
In the courts, the Vermont Supreme Court has held in a
medical malpractice case that an apology by a physician for
an "inadequate" operation is not an admission of liability.
(Phinney v. Vinson (1992) 605 A.2d 849.) That court
similarly held that an apology for a serious mistake made
during surgery does not establish an element of a
malpractice claim. (Senesac v. Associates in Obstetrics
and Gynecology (1982) 449 A.2d 900.)
The Georgia Supreme Court has also held that evidence of
activity constituting a voluntary offer of assistance made
on the impulse of benevolence or sympathy should be
encouraged and should not be considered an admission of
liability. (Deese v. Carroll City County Hospital (1992)
416 S.E.2d 127.)
CHANGES TO EXISTING LAW
Existing law makes a declaration against interest
admissible as an exception to the hearsay
rule. (Evidence Code Section 1230.) It also provides for
the inadmissibility of certain evidence as a matter of
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public policy. (Evidence Code Section 900 et seq.)
This bill would make a statement of apology or other
benevolent gesture to a person harmed in an accident
inadmissible as evidence of the declarant's liability in a
civil action. Specifically, the bill would provide that
the portion of statements, writings, or benevolent gestures
expressing sympathy or a general sense of benevolence
relating to the pain, suffering, or death of a person
involved in an accident and made to that person or the
person's family shall not be admissible as evidence of an
admission of liability in a civil action. However, a
statement of fault which is part of, or in addition to, any
of the above is not made inadmissible by this bill.
COMMENT
1. Genesis of proposal
The author introduced this bill in an attempt to reduce
lawsuits and encourage settlements by encouraging the use
of apologies in connection with accident-related injuries
or death. The bill's sponsor, Judge Quentin Kopp, offers
the following statement in support of the measure:
Assembly Bill 2804 adds a section to the Evidence Code
rendering written, oral, or physical expressions of
sympathy or gestures in the form of an apology
inadmissible in a trial or an action arising from an
accident. Presently, apologies and similar
expressions are admissible as purported exceptions to
the hearsay rule in a trial by court or jury.
Commentators and scholars and now courts and
legislatures have observed that many lawsuits,
although unquantifiable, result from anger which, in
turn, results from a failure of another party to
express regret or sympathy. Lawyers and insurers
regularly advise parties to accidents not to express
regret or convey an apology or statement of
compassion, commiseration or contrition for fear it
will be used against the parties and thereby cause
them financial harm.
As Judge William Schma of Kalamazoo County (Michigan)
Circuit Court has observed, the issue of expressing
AB 2804 (Papan)
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sorrow or apology represents a defect in a system
overemphasizing adversarial relationships. Professor
Jonathan Cohen of the University of Florida, College
of Law, states that 30 percent of plaintiffs claim no
suit would have occurred if a medical doctor in a
medical malpractice context had apologized.
The California Evidence Code manifestly discourages
the human tendency to apologize or express regret over
an incident caused by negligence. Yet, apologies
reduce the anger of those who otherwise would sue from
anger.
AB 2804 permits humane, natural sentiments to be
uttered by human beings without fear of use against
them in litigation. It resembles a 1986 Massachusetts
law and a 1999 Texas law, as well as Vermont Supreme
Court and Georgia Supreme Court case law. It promotes
calming rather than disputatiousness by distinguishing
between utterances and gestures of sympathy on the one
hand, and admissions of fault on the other hand.
When introduced, AB 2804 was identical to the
Massachusetts law. However, it has since been amended to
provide that only those portions of statements containing
the apology would be rendered inadmissible, and further
that a statement of fault which is part of or in
addition to any benevolent statement, writing or gesture
would not be made inadmissible by this bill.
The analysis of the Assembly Judiciary Committee offers a
hypothetical example provided by the sponsor to assist in
understanding the parameters of the bill's proposed new
evidence rule: "An accident occurs and one driver says
to the other: 'I'm sorry you were hurt, the accident was
all my fault.' -or- 'I'm sorry you were hurt, I was
using my cell phone and just didn't see you coming.'
Under the bill, only the portions of the statements
containing the apology would be inadmissible; any other
expression acknowledging or implying fault would continue
to be admissible, consistent with present evidentiary
standards."
2. Possible need for clarifying amendment: another
illustrative example
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Take, for example, three statements. Statement A: "I'm
sorry." Statement B: "It's my fault." Statement C:
"I'm sorry. It's my fault."
Under AB 2804, Statement A would be inadmissible.
Statement B would remain admissible. The "I'm sorry"
part of Statement C would be inadmissible while the "It's
my fault" part would be admissible.
From a public policy standpoint, it is uncertain why, in
the Statement C example, the statement of apology should
be inadmissible as a matter of law. In this context,
where the concurrent statement of guilt is and remains
admissible, a concurrent statement of apology does not
add to the establishment of guilt. Moreover, its
inadmissibility may place the defendant in a more
unfavorable light. A jury will hear only the
contemporaneous admission of guilt, "It's my fault," but
would be barred from knowing that the defendant also
apologized in the same breath. Hence, it is conceivable
that some jurors may think the defendant particularly
mean-spirited to admit guilt but not apologize, and
therefore be subliminally prejudiced against the
defendant.
A defendant could also conceivably argue, in the context
of the above situation, that inadmissibility of the
apology deprives him of a fair trial, that a
contemporaneous expression of regret along with an
admission of guilt may be evidence that the defendant's
actions were accidental, and not malicious -- which will
have a bearing if punitive damages are being sought.
Thus, while the main thrust of AB 2804 would promote a
basic fairness in evidentiary law, the bill's treatment
of the Statement C situation may have unforeseen
consequences that could be unfair to a defendant who may
want that concurrent statement of apology to be
admissible to show the entire context of his words.
AB 2804 would provide that statements of apology (lines 8
and 9) "shall be inadmissible as evidence of an admission
of liability in a civil action," so that a defendant
could conceivably argue that the apology part is being
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Page 6
admitted to show context, and not liability. However, it
would be his burden to show the evidentiary basis for the
admissibility, a burden that could be made more difficult
by this bill's express policy of inadmissibility.
Indeed, if such a motion were made, the plaintiff could
use the Assembly Committee's analysis to show the
Legislature's intent that the apology part of a Statement
C statement would be inadmissible.
The sponsor has opined that a court could admit the
apology part of the statement in the court's discretion
as relevant evidence, and that this Senate Committee
analysis, by so stating the sponsor's intent, could be
used to express legislative intent in that regard.
However, a plaintiff's counsel could argue to the Law and
Motion judge that the statute on its face clearly
provides for inadmissibility and that, therefore, resort
to secondary materials to devine legislative intent is
neither necessary nor appropriate. Whether the judge
would rule in the plaintiff's favor can only be guessed
at. What does seem more certain is that the point will
be litigated by parties seeking advantage.
Thus, the author may wish to consider a clarifying
amendment to avoid the likely litigation and to provide
clear guidance for the courts.
SHOULD THE BILL BE CLARIFIED TO NOT PRECLUDE THE
ADMISSIBILITY OF A STATEMENT OF APOLOGY MADE CONCURRENTLY
WITH A STATEMENT ADMITTING LIABILITY, FOR THE PURPOSE OF
SHOWING THE CONTEXT OF THE LIABILITY-ADMITTING STATEMENT?
Possible language: (added to end of subdivision (a) on
page 2, line 11):
A statement, writing, or benevolent gesture expressing
sympathy or a general sense of benevolence, as provided
in this section, that is made concurrently with a
spontaneous or excited utterance including a statement or
statements concerning negligence or liability of
pertaining to an accident or event, which portions of the
statement or statements have been or will be admitted
into evidence, is not made inadmissible by this section
to show the full state of mind of the communicator when
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Page 7
making the statement.
3. Proposed definitions
This bill would define "accident" to mean "an occurrence
resulting in injury or death to one or more persons which
is not the result of willful action by a party " It would
define "benevolent gestures" to mean "actions which
convey a sense of compassion or commiseration emanating
from human impulses."
Support: San Francisco Chronicle; Civil Justice Association
of California
Opposition: None Known
HISTORY
Source: Judge Quentin Kopp, San Mateo County Superior Court
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Assembly Floor Vote: 75 - 0
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