Inadmissible Subsequent Remedial Measures

Posted by David Adelstein on March 12, 2015
Evidence

 

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Sometimes plaintiffs try to introduce evidence of subsequent remedial measures a defendant undertook after a defective condition caused an injury or damage to prove the existence of the defective condition and the culpability of the defendant. In other words, the plaintiff wants to show that if the remedial measure was performed to the defective condition prior to the injury or damage the injury or damage would probably not have occurred.   This evidence of subsequent remedial measures is not admissible subject to an impeachment exception (where the evidence is not admitted as substantive evidence but to impeach a witness).

To this point, Florida Statute s. 90.407 provides:

Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.

 

For example, in Harris v. Florida Power & Light Co., 700 So.2d 1240 (Fla. 3d DCA 1997), a person died from being electrocuted from an uninsulated power line. The plaintiff argued that overgrown trees had been pushed into the power line by a crane causing electrical current to run from the trees to the crane and then to the truck the deceased was leaning against. Upon learning of the accident, FP&L had the overgrown trees located at the accident scene trimmed. At trial, the plaintiff argued that FP&L was required to cut trees away from the power line which FP&L disputed. FP&L contended that the deceased was electrocuted when the crane came into contact with the power line that caused the electrical current to travel from the crane to the truck that the deceased was leaning against. During trial, the plaintiff tried to introduce evidence of FP&L cutting the overgrown trees immediately after the accident. The trial court correctly deemed this evidence as an inadmissible subsequent remedial measure that the plaintiff only wanted to introduce in order to prove that FP&L was negligent by not trimming the trees sooner.

Conversely, in Daharan Well Texaco Oil Co. v. McFadden, 717 So.2d 162 (Fla. 3d DCA 1998), the defendant in a slip and fall lawsuit appealed because the trial judge deemed admissible a photograph of the slip and fall location after the plaintiff’s fall. The defendant argued that the photograph should have been deemed inadmissible because it depicted a subsequent remedial measure. The appellate court affirmed the trial court finding that the photograph was properly admissible under the impeachment evidence exception to subsequent remedial measures. See, e.g., Morowitz v. Vistaview Apartments, Ltd., 613 So.2d 493 (Fla. 3d DCA 1993) (newsletter distributed to tenants that said don’t get on elevators in wet bathing suits as floors are slippery after a slip and fall accident at apartment building should have been admissible impeachment evidence to impeach defendant’s employees that said they were unaware of notices given to tenants of slippery floors).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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