Dennis v. Jakeway

¶1(concurring in result). I concur with the majority opinion which affirms the jury verdict of no cause of action in favor of defendant.

¶2*76I write separately solely because of my disagreement with the statement that "introduction of … photographs simulating a previously existing situation is a matter of discretion with the trial judge”.

¶3While there is ample case authority which stands for that particular proposition, I am, nonetheless, pursuaded that the rule may be more precisely and accurately stated. My understanding is that the trial judge decides as a matter of law whether proposed exhibits, such as the posed photographs herein, faithfully depict conditions at the time of the accident with sufficient accuracy to warrant their admission in evidence. Should the evidence meet this threshold criterion for admissibility, as interpreted by relevant case authority, the trial judge must allow the involved photographs to be submitted for consideration by the trier of fact. There is no discretion on the part of the trial judge.1 Either the photographs are admissible as a matter of law or they are not admissible on specific legal grounds. Hence, the test is not whether the trial judge abused his discretion in denying plaintiff the right to introduce the posed photographs. The crucial inquiry is instead whether the trial judge erred as a matter of law in holding that the proffered exhibits were not accurate representations of conditions the night of the automobile collision. I must answer that question in the negative. I too agree that the lower court properly denied admission of the proposed exhibits. It was not shown by plaintiff, as mandated by Kaminski v Wayne County Road Commissioners, 370 Mich 389; 121 NW2d 830 (1963), that the *77involved photographs substantially depicted conditions as they existed when the decedent’s death occurred.

¶4I vote to affirm and award costs to the appellee.