Subsequent Remedial Measures

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July 28, 2009

Inadmissible to Prove Negligence or Culpable Conduct

The general rule is that evidence of subsequent repair is not admissible on the issue of negligence.[1] Courts may admit evidence of subsequent remedial measures if offered for other purposes.[2] The rule barring evidence of subsequent repairs in negligence actions is based on narrow public policy grounds, not on any evidentiary infirmity. It presupposes that to admit evidence of subsequent repairs to an identified hazardous condition as proof of negligence penalizes the defendant for taking remedial measures. This discourages alleged tortfeasors from repairing hazards, thereby perpetuating the danger. This policy fosters the public good by allowing tortfeasors to repair hazards without fear of having the repair used as proof of negligence.

Even in negligence actions, however, courts have held proof of subsequent remedial measures admissible if offered for a purpose other than to show culpable conduct on the part of a defendant. In several cases, evidence has been admitted when the defendant's control of the hazardous instrumentality is at issue in the suit.[3] The existence of these exceptions to the general rule illustrates that the strength of the public policy supporting the rule is not so great as to demand the exclusion where there is a strong probative use for the evidence, as contrasted with the somewhat dubious legal relevance of subsequent repairs to the question of negligence itself.[4]

The central question is the plaintiff's purpose in introducing the evidence. The doctrine bars evidence of subsequent repairs when offered to prove negligence. It does not exclude such evidence when offered to prove some other material issue,[5] such as ownership, control, or feasibility of precautionary measures.[6] While repairs made after an accident tend to prove that the party conducting them retains control over the area in question, if the defendant has admitted orally that it controlled the premises on which the injury occurred, no reference in testimony to subsequent repairs should be made.[7]

Ordinarily, evidence of various remedial measures which have been taken by a defendant after the occurrence of a slip and fall accident are inadmissible to prove that the pre-accident condition of the premises was unreasonably dangerous.[8] The rationale most often offered for this rule is based on the police of encouraging persons to implement safety precautions whenever necessary to prevent the occurrence of injury-causing accidents. The exceptions to this evidentiary rule include evidence of post-accident remedial measures allowed to prove some other related fact, such as the condition of the accident scene at the time of the fall, or for purposes of impeachment.

One particularly common evidentiary problem in many slip and fall cases involves the admissibility of evidence regarding the defendant's clean-up of the premises immediately following an accident. Often, because of the nature of the defendant's premises, as well as the type of hazardous condition involved, the vicinity immediately surrounding an accident site may be cleaned up and the foreign substance removed before the plaintiff or any other potential witness has had an opportunity to examine the area. In such cases, the description of the post-accident site, as well as the details of clean-up procedures utilized by persons who actually removed the hazardous condition, are usually admissible to prove the existence of the alleged hazardous condition of the premises at the time of the accident.

Connecticut Code of Evidence § 4-7(b) provides: Strict product liability of goods. Where a theory of liability relied on by a party is strict product liability, evidence of such measures taken after a event is admissible. Subsection (b) adopts the rule announced in Sanderson v. Steve Snyder Enterprises, Inc.[9] In Sanderson, the court stated two reasons for rendering the general exclusionary rule inapplicable in strict product liability cases. First, the court reasoned that the danger of discouraging subsequent corrective measures is not a chief concern in strict product liability cases. "The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tends of thousands of units of goods; it is manifestly unreasonable to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse affect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability."[10]

Second, it reasoned that because the product's defectiveness is at issue in as strict product liability case, rather than the producer/defendant's negligence or culpable conduct, the probative value of the evidence is high. Specifically, subsequent remedial measures evidence in strict product liability cases is probative of the issue of product defectiveness because it gives the fact finder a safer alternative design against which to compare the previous design. Because the evidence is offered for purposes other than to prove negligence or culpable conduct, the policy for exclusion does not exist.[11]

Similarly, in products liability cases, evidence of post-accident modifications made by a nonparty are admissible. Subsequent change evidence may be highly probative of defectiveness, because it provides a safer alternative against which to compare the allegedly defective product.[12]

In products liability actions, evidence of safety features provided by other manufacturers of the allegedly defective product prior to or contemporaneous with the manufacture of that product may be relevant and admissible on the issue of defectiveness.[13] Also in products liability actions, evidence of safety features provided by other manufacturers subsequent to the manufacture of the allegedly defective product but prior to the date of injury may be permitted if relevant to the claimed defect and not remote in time or connection to the defect in question.[14]

The same public policy considerations behind the exclusion of subsequent remedial measures in a negligence action apply to a statutory cause of action brought under the Defective Highway Statute, Conn. Gen. Stat. § 13a-144.[15]

[1] Conn. Code of Evidence, § 4-7, provides: " Subsequent Remedial Measures

(a) General rule. Except as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures.

[2] Smith v. Town of Greenwich, 278 Conn. 428, 447-49 (2006) (defendant's control of the premises where the incident occurred.)

[3] See, e.g., Williams v. Milner Hotels Co., 130 Conn. 507, 510 (1944) (control); Killian v. Logan, 115 Conn. 437, 439 (1932).

[4] Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 143-45 (1985).

[5] Rokus v. Bridgeport, 191 Conn. 62, 66 (1983) (post-accident photograph of accident scene at which subsequent remedial measures had be implemented admissible when photograph was offered solely to show configuration and layout of streets and sidewalk to acquaint jury with accident scene.)

[6] Baldwin v. Norwalk, 96 Conn.1, 8 (1921) (subsequent remedial measures evidence may also be offered for impeachment purposes.)

[7] Haffey v. Lemieux, 154 Conn. 185, 192-93 (1966).

[8] See Fed. R. Evid. 407.

[9] 196 Conn. 134, 148 (1985).

[10] Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 148 (1985).

[11] Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 147 (1985).

[12] Wagner v. Clark Equipment Co., 243 Conn. 168, 191-200 (1997).

[13] Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 647 (1986).

[14] Hartmann v. Black & Decker Mfg. Co., 16 Conn. App. 1, 13-14 (1988).