If you trip climbing a set of stairs with bunched up carpeting that makes the footing uneven, you might be inclined to file a lawsuit seeking compensation for the injuries you incurred in your fall. The property owner might have the carpeting replaced after learning of your accident and resulting injuries. Although these repairs might seem like powerful evidence that the property owner was aware the uneven carpet constituted a hazard to people using the stairs, this potentially powerful information generally is not admissible to prove liability. Although this legal rule might seem counter-intuitive, the public policy behind this limitation is designed to encourage parties to remediate hazards without the fear of confirming liability.
In this blog post, our personal injury lawyers examine a pedestrian accident lawsuit in which the court admitted evidence of subsequent remedial measures. In Lee County Department of Transportation v. Cantallupo, Florida’s 2nd DCA considered a lawsuit brought by a pedestrian who slipped and fell on a water valve cover that became dislodged from the surrounding asphalt. The pedestrian sued the water company alleging that it had a duty to maintain the valve and area immediately adjacent. The water company defended by claiming its maintenance duty was limited to the valve while the city was responsible for the asphalt surrounding the valve.
When the lawsuit was pending, the water company repaired the damaged asphalt. The pedestrian sought to present evidence of the remedial measures to the jury. Although the water company opposed the introduction of the repairs, the pedestrian contended the information fell under an exception to the ban on evidence of subsequent remedial measures. According to the plaintiff, the repair work was admissible because it was offered to demonstrate the water company exercised ownership over the area adjacent to the valve rather than to establish liability.
The trial judge excluded evidence of the asphalt repair based on the ban on subsequent remedial measures. On appeal, the pedestrian was successful in having the trial judge reversed. The appellate court considered the prohibition of Florida Statute 90.407 which provided: “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.”
The appellate court ruled that the repairs fell squarely within an exception to the provision covering situations where the remedial measures are offered for another purpose, such as to establish ownership. Because the purpose of the evidence was to refute the claims of the water company that it did not have ownership of the areas surrounding the valve, the appellate court held the information was admissible for the limited purpose of proving the utility company’s access and responsibility for the area.
Although not applicable in this particular personal injury lawsuit, there are other exceptions expressly enumerated that include establishing impeachment of the credibility of a witness or the feasibility of alternate designs or precautionary measures. However, these issues need to be relevant to be used as a basis for allowing the jury to be told of repairs implemented after an accident resulting in injury or death. Skillful advocacy might permit the use of these alternative grounds for consideration of remedial measures by the judge or jury.
Greenberg, Stone, & Urbano: Seeking Maximum Recovery for Damages Sustained Due to Negligence
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