Last week, the Court of Appeals of Missouri decided a subsequent remedial measures case that I think is of interest to all personal injury lawyers no matter where you practice.
The subsequent remedial measures rule is one of those law school standards that any second-year student can explain in about two minutes. Despite its seeming simplicity, as we see in Emerson v. Garvin Group, the rule is more complicated to apply.
Plaintiff was employed by Raven Industries and was responsible for performing electrical assembly work. Due to the nature of the company’s work, the electrical plant floors had to be stripped, waxed, and buffed to comply with static electricity issues. This work was done by the Garvin Group.
During a routine shift, the Garvin Group had begun the process of treating the plant floors near the plaintiff. When the plaintiff left her work station to get necessary electrical parts, she slipped and fell in the area that had just been treated. Plaintiff suffered wrist injuries because of the fall.
After the accident, it was noted that the Garvin Group had not marked the treated area with cones or tape.
At trial, the plaintiff sought to introduce evidence that after the injury, Raven instructed the Garvin Group to mark the recently treated areas of the floor. The trial court excluded this evidence as a subsequent remedial measure.
The subsequent remedial measures rule is a part of evidence law. This is a policy rule that prohibits the court from hearing evidence of what a defendant did after an incident if that evidence is introduced to prove negligence, culpable conduct, defect, or a need for a warning. Such evidence can be used for other purposes, including proof of ownership or control over a thing.
Courts exclude this evidence because we don’t want juries to take subsequent remedial measures as proof of guilt. Further, courts use this rule because we want to encourage all parties, including defendants, to conduct themselves in the safest way possible. If parties were punished for making things safer, they would be less inclined to do so.
The jury awarded $15,000 but apportioned the plaintiff to be 80% at fault, thus giving her a $3,000 total award. From this judgment, the plaintiff appealed.
At appeal, the plaintiff argued that the trial court erred in excluding evidence that, subsequent to her accident, Raven directed Garvin to mark the treated areas of the floor. Plaintiff acknowledged the subsequent remedial measures rule but argued that the rule does not apply to measures taken by a non-party. She said that because this evidence cannot expose the third party to liability, it should be admissible. Federal courts have agreed with the plaintiff’s argument. Missouri courts are not bound by the Federal Rules of Evidence, but the court took them into consideration in this decision.
The appellate court agreed with the plaintiff on the theory that because a non-party will not be exposed to liability and thus will not be discouraged from taking remedial measures, the public policy rationale for the rule is satisfied.
Plaintiff’s appeal also disputed the amount of compensation she received. The Court of Appeals remanded the case for a new trial to determine fault and damages.
This case shows how a simple rule can become very complicated once it is put into action in the courtroom. I hate the rule – it has been used against me – and I’m not sure it works as well as many things. Because most lawyers will say, “There is still a risk in fixing it” because there could be an exception to the rule that would lead to it coming into evidence. Still, I support safety rules and I can’t be a hypocrite on those rules that I don’t like as a lawyer.