Surveys may be admissible

It should be noted that there are certain violations discovered during the survey process that will have an affect on the well-being of a resident. For instance, not having sufficient staff to meet the residents needs, failure to notify the physician of a change of the resident’s condition, dehydration, malnutrition.

Moreover, prior conduct in general is admissible under the law under certain circumstances. Evidence of prior similar accidents is admissible to prove defect, foreseeability, notice appreciation of the danger and to show defendants’ disposition, intention, or motive in the particular acts for which damages are claimed. In the final analysis, the question of admissibility of similar accident is left to the sound discretion of the trial court. Regarding the particular issue for instance, the court has stated:

In determining whether accident are ‘substantially similar,’ the factors to be considered are those that relate to the particular theory underlying the case. Differences in the nature of the defect alleged may affect a determination as to whether the accident are substantially similar. See, e.g. Jackson, 788 F.2d at 1083. (“the ‘substantially similar’ predicate for the proof of similar accident is defined . . . by the defects . . . at issue.”) Moreover, ‘how substantial the similarity must be is in part a function of the proponents theory of proof.’ Exum 819 F.2d at 1162. (‘If dangerousness is the issue, a high degree of similarity will be essential . . . if the accident is offered to provide notice, a lack of exact similarity of conditions will not cause exclusion provided the accident was of the kind which should have served to warn the defendant.’ Id. at 1162-63, quoting 1 J. Weinstein and M. Berger, Weinstein’s Evidence, Section 41 (10), at 41-66-67 (1987).

Moreover, a prior report may be offered to prove defect and notice, and received into evidence solely on the issue of notice.