Discovery and Admissibility of Subsequent Remedial Measures in the Premises Liability Case

DISCOVERY AND ADMISSIBILITY OF SUBSEQUENT REMEDIAL MEASURES
IN THE PREMISES LIABILITY CASE

By: Matt Campos

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Early investigation of a premises liability case often reveals subsequent modifications to address a defective condition. In fact, the absence of any corrective action should raise a red flag on the issue of liability. But a thorough evaluation must ultimately take into account a number of areas of inquiry. How this information is developed during discovery and how the defendant reacts to the facts when faced with a claim will impact the admissibility of any subsequent remedial measure.

Discovery Checklist

The defendant’s historical experience with the property under their control can be broken into two broad areas: changes to or evaluation of the property or facility itself; and the presence or absence of similar claims or occurrences as those giving rise to the litigation. With respect to the property or facility itself, it is essential to discover

the following by interrogatory and request for production:

  • Ownership history or chain of title to identify prior owners who may have performed modifications and may be much more willing to identify safety concerns.;
  • Maintenance history, including repairs, service contracts and identification of all third party providers;
  • Architects, engineers or other development and design professionals and resulting blueprints or facility drawings;
  • Third party safety analysis by insurers, governmental agencies and parent companies;
  • Photographs or videotape of a surveillance nature or that chronicle safety evaluations of the premises;
  • Internal safety audits and reviews within the company as it relates to the premises;
  • Building occupancy or other necessary regulatory permits for construction or operation;
  • Personnel lists of past and present employees in positions related to the existence or evaluation of the defective condition;
  • Professional or industry organization affiliations or memberships and any standards or guidelines for premises or operations management.

The second half of the equation is the presence or absence of other injuries under the same or similar circumstances. Fruitful categories of inquiry are as follows:

  • Prior lawsuits including other suits on any premises issue;
  • Prior claims that did not rise to the level of suits;
  • Other occurrences that did not result in injury-the near miss (often developed best by recollections of ex-employees);
  • OHSA or other regulatory agency fines or citations;
  • Employee workers’ compensation claims (the defective premises are often equally hazardous to the defendant’s own employees);
  • Property damage claims arising from the premises’ operations.

Armed with this information, the relation between events and subsequent

remedial measures to address those events can be fully explored. Often the absence of information or safety analysis or the lack of any reporting system can work to your advantage. Juries do not appreciate a “head in the sand” approach to safety, nor do they sympathize with defendants who do nothing to address a pattern of injuries. Because defendants are loathe to admit on many occasions that they even have or had a problem, they may disguise subsequent remedial measures as changes for economic or other non-safety related reasons. This may open the door to the admissibility of post accident modifications to the property.

Admissibility of Subsequent Remedial Measures

The best possible position for the plaintiff is of course evidence that acknowledges or corrects the hazard causing the injury. However, it is well established in Missouri that evidence of subsequent remedial measures is inadmissible for the purpose of proving negligence. The rationale for this rule is simple: “If evidence of precautions taken after an accident is admissible, remedial measures would never be taken.” Stinson v. E. I. DuPont de Nemours & Co., 904 S.W.2d 428, 432 (Mo. App. W.D. 1995). If all that stands in the way of your introducing an important piece of evidence is the subsequent remedial measures rule, fear not. There are numerous other purposes for which such evidence, properly introduced, will be admissible, provided a proper foundation is laid.

It is important, when analyzing the admissibility of evidence with regard to the subsequent remedial measures rule, to determine whether the rule applies at all. It should be determined precisely when the repairs were made in relation to the accident. If the repairs were performed prior to the accident, they are, by definition, not subsequent remedial measures. Such repairs are not protected under the rule.

The accident is the critical event. Repairs performed after complaints have been received confirming the existence of a dangerous defect but prior to the event giving rise to the claim are not protected by the rule. For example, suppose a business receives complaints that ice is forming on their steps, creating a dangerous condition. In response to this, the business installs an awning over the steps. Subsequently, a person falls and is injured from ice that formed on the steps despite the awning. The plaintiff can introduce evidence of the installation of the awning to prove the negligence of the business. Despite the fact that the awning was installed in an attempt to make the premises safer and despite the fact that the awning was installed after the business received complaints about the safety of the steps, the installation occurred prior to the accident. Evidence of the conditions that exist at the time of the occurrence is always admissible. It is the accident that is the critical event for determining whether a repair is a subsequent remedial measure.

Even if the evidence appears to be protected under the subsequent remedial measures rule, it may yet be admissible. Missouri Courts have repeatedly stated: “Subsequent remedial measures may be admissible if offered for a purpose other than drawing an inference of negligence from the fact of repairs.” Danbury v. Jackson County, 990 S.W.2d 160, 166 (Mo. App. W.D. 1999). This broad rule permits one to properly introduce evidence, ordinarily inadmissible under the subsequent remedial measures rule, in a variety of situations.

Evidence of subsequent remedial measures is admissible to “show the condition of the accident site at the time the accident occurred.” Id. at 165. In Danbury, the plaintiff was injured after her foot was caught in a hole in some stone steps. The trial court permitted the plaintiff to introduce photographs of the steps taken after the hole had been repaired. The defendant appealed on the grounds that the photographs included evidence of subsequent remedial measures. However, the appellate court denied defendant’s objection and held that the evidence was properly admitted to “show the condition of the accident site at the time the accident occurred.” Id. The appellate court noted that, if the rule were otherwise, “a defendant would always be able to keep from the jury any photograph of the site of an alleged property defect simply by conducting repairs before the plaintiff has an opportunity to take a photograph.” Id.

Evidence of subsequent remedial measures is also admissible to prove r control, to establish the feasibility of precautionary measures when the issue is in dispute, and for use for impeachment or rebuttal.” Ielouch v. Missouri Highway & Transp. Comm'n, 972 S.W.2d 563, 566 (Mo. App. W.D. 1988). In Ielouch, the issue was whether the lack of flashers warning of a school zone had created a dangerous situation. “The department's traffic engineer, Wallace Campbell, testified that warning flashers in school areas would be ineffective and not recommended by the department.” Id. The appellate court held that the trial court had erred in excluding from evidence a memorandum stating that the school district had “requested approval for the installation of a set of roadside flashers.” Id. at 567. The appellate court held that the memorandum was admissible despite the fact that it contained information about subsequent remedial measures “because the memorandum directly concerned the feasibility of precautionary measures in dispute and because the memorandum rebutted Campbell's testimony.” Id.

The traditional “substance on the floor” premises case provides ample opportunity for those exceptions to apply. The elements of that claim under MAI 2203 are:

  • There was a substance on the floor that caused the plaintiff to fall
  • The presence of the substance made the floor not reasonably safe
  • The defendant knew about the dangerous condition or could have known by using ordinary care, and
  • The defendant failed to exercise ordinary care to make the condition safe

In such a case, the plaintiff could use subsequent remedial measures to show that there was a substance on the floor at the time of the incident, that the substance made the floor dangerous or that it was feasible for the defendant to have made the repairs in question. However, plaintiff could not use the subsequent remedial measures to persuade the jury to draw an inference of negligence from the fact that the defendant made repairs or otherwise made the premises safe.

To admit such evidence, the plaintiff will need to establish a proper foundation. To establish a proper foundation, the plaintiff need only explain purpose for which the evidence is being offered. For example, if when presenting a photograph of an accident scene taken after the accident and subsequent repairs for the purpose of establishing that a dangerous condition existed at the time of the accident, the plaintiff would need to explain the reason the evidence is being presented. In addition, the plaintiff would need to explain the differences between the accident scene as it exists in the photograph and the accident scene as it existed at the time of the accident. Any evidence of subsequent remedial measures must also pass the usual balancing test. The plaintiff must be prepared to explain how the probative value of this evidence outweighs any prejudicial effect with regard to the specific reason for which it is being offered.

The above is by no means an exhaustive list of the situations in which evidence can be properly introduced over the subsequent remedial measures rule. Such evidence can be admitted for virtually any legitimate purpose other than for proving the negligence of the defendant.

Accident History of the Premises

A separate but related issue to the admissibility of subsequent remedial measures, is whether evidence of the presence on absence of prior accidents is admissible, Unless the defendant is or should have been on notice of the hazardous nature of the defective condition, a submissible case cannot be made. While in the past, the general rule has been that “evidence of the lack of prior accidents is inadmissible…the recent trend is toward admissibility of such evidence to show: (1) absence of defect or condition alleged; (2) lack of a causal relationship between the injury and the defect or condition charged; (3) the nonexistence of an unduly dangerous situation; or (4) want of knowledge of (or of grounds to realize) the danger.” Carbin v. National Super Markets, Inc., 823 S.W.2d 93 (1991) (citation omitted).

However, in order to admit such evidence, the defendant must first establish a proper foundation. “Evidence of absence of other accidents is relevant in a case claiming defective design of a product if it is shown that the absence occurred when the product was used under conditions substantially similar to those faced by plaintiff and an adequate number of those situation had occurred to make the absence meaningful.” McJunkins v. Windham Power Lifts, Inc. 767 S.W.2d 95, 100 (Mo.App. S.D. 1989). Such a foundation is necessary because “admitting evidence of the absence of other accidents without such a foundation could present evidence to a jury that was irrelevant to the case before it.” Watkins v. Toro Co., 901 S.W.2d 917, 920 (Mo. App.E.D. 1995). The foundation has proven to be a substantial obstacle to the admission of evidence. Missouri courts have frequently found that while evidence of a lack of accidents could be admissible, the defendant had not established a sufficient foundation. Please see McJunkins v. Windham Power Lifts, Inc., 767 S.W.2d 95; Lollar v. A.O. Smith Harvestore Products, Inc., 795 S.W.2d 441 (1990); Henson by & Through Lincoln v. Board of Educ., 948 S.W.2d 202 (1997). As with most evidentiary issues, “[w]hether the foundation is adequately shown is primarily within the discretion of the trial court.” Watkins, at 921.

Alternatively, the plaintiff can introduce evidence of prior incidents to show the defendant had knowledge of a dangerous condition or to rebut defendant’s assertion that the product or premises were safe, provided a proper foundation is laid. To establish a proper foundation the plaintiff must demonstrate that the circumstances surrounding the prior incidents are “similar” to those that injured the plaintiff in the instant case. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 446 (Mo. 1998). For example, in Letz v. Turbomeca Engine Corp., the court held admissible a fax sent by helicopter manufacturer disclosing prior accidents to the Federal Aviation Administration where all the prior accidents involved the same engine component. 975 S.W.2d 155 (Mo.App. W.D. 1997). Provided the circumstances surrounding the prior incidents are similar to the situation that caused the plaintiff’s injuries the prior acts are admissible. The standard for introducing evidence of prior incidents tends to be somewhat more relaxed than the standard for admitting evidence of the absence of prior incidents.

There is significant flexibility in the rules regarding subsequent remedial measures and either the presence or absence of prior incidents. An argument can almost always be made to admit evidence of subsequent remedial measures, albeit with a limiting instruction. Similarly, arguments regarding the absence or presence of prior incidents turn on the facts of each case. By fully developing the defendant’s factual history with the defective condition in question, and tailoring the deposition inquiry of key personal to fit the foundational requirements, the jury should be able to hear the full story.


Matt Campos is a second year candidate for his J.D. degree from the University of Missouri-Kansas City and clerking for the firm of Monsees, Miller, Mayer, Presely and Amick, P.C.