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.
What Is the Subsequent Remedial Measures Rule?
The subsequent remedial measures Rule is a legal principle designed to promote safety and prevent future injuries or accidents. It encourages people and entities to correct hazardous conditions by disallowing evidence of repairs, improvements, or other remedial measures to prove negligence or culpability in civil lawsuits. You don’t want to create a law that disincentives people to do the right thing and make the necessary safety measures because they don’t want it thrown back and them at trial. It is hard for plaintiffs’ lawyers to swallow sometimes. But it is a good rule.
This rule is primarily governed by Rule 407 of the Federal Rules of Evidence in the United States. According to Rule 407, if an injury or accident happens, and afterward a person or company makes a change to make a similar injury or accident less likely to occur in the future, that change cannot be used as evidence to prove that the person or company was negligent or at fault for the original injury or accident.
Again, the reasoning behind this rule is to motivate people and companies to fix potential hazards or dangerous conditions without being afraid that the plaintiffs will weaponize that effort to protect public safety as evidence of negligence in a lawsuit. Essentially, the rule values the prevention of future injuries over the marginal benefits it might have in proving past negligence.
For instance, if someone slips on a wet floor in a supermarket and breaks their leg, the supermarket might install “wet floor” signs afterward to prevent further accidents. According to the Subsequent Remedial Measures Rule, the fact that the supermarket installed these signs after the accident cannot be used as evidence to argue that the supermarket was negligent for not having the signs before the accident.
However, there are exceptions where such evidence may be admissible for other purposes. This could include proving ownership or control, the feasibility of precautionary measures – which is the one we most commonly use, or for impeachment to discredit a witness’s credibility.
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 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 Missouri 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.