Rhode Island is the only state in the Country which allows evidence of subsequent remedial measures solely to prove liability in a premises liability or other negligence causes of action. (The issue of subsequent remedial measures in product liability and defective product cases in Rhode Island and Across the United States is beyond the scope of this personal injury and slip and fall post)
RI Personal Injury lawyers, Judges and insurance defense attorneys all learn in law school that the federal rules of evidence prohibit subsequent remedial measures to prove Liability of the defendant. This rule is contained in rule 407 of the federal rules of evidence. Nearly every state except Rhode Island has adopted a similar rule to use for its respective state courts.
Rule 407. Subsequent Remedial Measures
“When measures are taken that would have made an earlier in-jury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures. (As amended Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 26, 2011, eff. Dec.1, 2011.) US Court
Really not an evidentiary rule
The Subsequent remedial Measure rule isn’t really an evidentiary rule- it is a public policy rule! In other words, the rule is not really in place because subsequent remedial measures are not probative of the issue of Liability. The rule is not instituted because subsequent remedial measures lack indicia of reliability to establish liability. The rule is not promulgated because evidence of a remedial measure will unfairly prejudice or inflame the jury!
Policy of encouraging potential defendants to remedy hazardous conditions
In, Raymond v. Raymond Corp., 938 F. 2d 1518 – Court of Appeals, 1st Circuit 199 set forth the rationale for the majority position by stating that rule 407 ” is based on the policy of encouraging potential defendants to remedy hazardous conditions without fear that their actions will be used as evidence against them. Gauthier v. AMF, Inc., 788 F.2d 634, 637amended, 805 F.2d 337 (9th Cir.1986). A non defendant will not be inhibited from taking remedial measures if such actions are allowed into evidence against a defendant. Causey v. Zinke (In re Aircrash in Bali, Indonesia), 871 F.2d 812, 816-17 (9th Cir.), cert. denied [___ U.S. ___], 110 S.Ct. 277 [107 L.Ed.2d 258] (1989). Raymond v. Raymond Corp., 938 F. 2d 1518 – Court of Appeals, 1st Circuit 1991”
Probative of liability
In fact, subsequent remedial measures are EXTREMELY PROBATIVE OF LIABILTY. Let’s take a look at a typical Slip and fall type case. If a person falls at a salad bar as a result of a slippery floor caused by salad dressing which dripped onto the floor, the fact that the supermarket later puts down rubber slip free mats shows that the supermarket acted negligently by not instituting proper and reasonable safety precautions. Let’s take a look at a standard pedestrian / construction accident in Rhode Island.
The Rules of Evidence:
There are dozens of other evidentiary rules which pertain to the lack of reliability of certain evidence and many rules designed to not unfairly inflame a jury with evidence that is probative but may be unfairly prejudicial. For example, personal injury lawyers in Rhode Island, Massachusetts (MA) and across the United States are all aware that hearsay may not be allowed into evidence. Hearsay is an out of Court statement used for the truth of the matter asserted. The rationale behind the hearsay rules is that out of Court statements are inherently unreliable. See federal rule of evidence Rule 801
What is a subsequent remedial measure?
What exactly is a subsequent remedial measure in a premises liability or slip and fall case? A subsequent remedial effort is fixing, repairing or remedying an unsafe or defective condition on a property after an accident, mishap or collision. It could also include security precautions, lighting, warning signs or signage. For example, a person fell down a cliff at a park in East Providence, at night and is seriously injured or killed. A subsequent remedial measure would be the tortfeasor or at fault party or employees putting up a lighted sign near the dangerous cliff warning guests and visitors and others using the property. It could even be a fence erected after the deadly fall to keep people from falling off the cliff in the future.
Sound public policy
In my opinion, the subsequent remedial measure rule is SOUND PUBLIC POLICY- FOR SURE- but the rationale for the rule is a tacit indictment of Big Insurance
Tacit indictment of Insurance Companies
The subsequent remedial measure rule is a tacit indictment of Insurance Companies. In my opinion, lawmakers are concerned that insurance companies will dissuade their insured from remedying the dangerous or unsafe condition on their property for fear of increased liability exposure. Rhode Island personal injury attorneys are aware that Insurance companies do not care about the health or welfare of people in the community or people who are seriously injured or killed in accidents and collisions/ wrecks in RI.
Insurance companies inform their insured not to fix or repair
If insurance companies inform their insured not to fix or repair a dangerous condition for fear of further exposure in a lawsuit then another person could be killed or seriously injured in an accident. Insurance companies are only motivated to deny claims or pay as little as possible to injured victims, Liability Companies are well known for ducking, delaying and denying liability for financial motivations. A moral person or company would repair or remedy a defective or unsafe condition on their property because it is the moral and just thing to prevent others from being injured on the property. A moral person would remedy the dangerous condition even if it meant exposing themselves to further liability to a trip and Fall lawsuit in Rhode Island.
Since we all know that insurance companies do not care about safety, society has determined that it is necessary to give Insurance companies immunity from further liability to give them incentive to do what they should morally do.
“Kathleen Tilden and some co-workers went to Tommy’s on December 12, 2006, for an office Christmas celebration. First, each had a drink in the wine bar section of the restaurant. Thereafter, the owner of the restaurant, Tommy Andrade, escorted Mrs. Tilden and her party to their table in the dining area. Upon entering the dining area, she fell, resulting in alleged injuries to her shoulder, back, and neck. The ensuing lawsuit filed by Mrs. Tilden and her husband, James Tilden, alleged that she slipped on a slippery, wet surface and asserted that the accident occurred because Tommy’s failed to properly maintain its flooring and failed to warn of a hazardous condition.” KATHLEEN HILL TILDENAND JAMES TILDENVERSUSBLANCA, L.L.C., 746TCHOUPITOULAS, L.L.C., 752TCHOUPITOULAS, L.L.C., AND ESSEX INSURANCE COMPANY
Fatal construction accident
Hypothetically, a pedestrian is walking on a sidewalk near a scaffold in downtown providence Rhode Island and is hit by a tool carelessly dropped by a construction worker above. This falling object causes the innocent pedestrian a severe head / traumatic brain injury which results in a fatal construction accident. The Executor of the Plaintiff’s estate, utilizing a Rhode Island wrongful Death attorney, files a wrongful death lawsuit in Providence RI Superior court alleging that the General Contractor and the construction worker were negligent. The Plaintiff also files suit against and the independent third party corporation, “the scaffolding Company” which built and maintained the Scaffold asserting they were negligent and such negligence caused the death of the decedent.
Of course, it is apparent that the industrial worker was at fault for the accident because he recklessly and carelessly operated the tool and the tool fell causing a death. It also appears that the general contractor who employed the construction worker was at fault because, generally, employers in Rhode Island and Massachusetts are responsible for the actions of their employees in the scope of their employment.
The Plaintiff will probably get no financial recovery from the construction laborer because he has no assets and no insurance. Let’s assume, that the general contractor only has a two hundred thousand dollar liability Insurance policy. Plaintiff is seeking four million dollars on behalf of the wife and children of the person who died in the tragedy. Plaintiff’s Rhode Island Personal Injury Lawyers determine that the third party who maintained and built the scaffolding has a 5 million dollar Insurance Liability policy
Of course, the scaffolding company’s liability carrier is denying responsibility, stating that they were not the ones who dropped the tool and it is not their fault! However, the day after the construction accident, the scaffolding company builds a covered walkway at a cost of $2,500. This walkway protects pedestrians below from falling objects, tools and machines.
The erection of this covered walkway is very probative of the negligence of the scaffolding company because it proves that the scaffolding company did not act reasonably to protect foreseeable pedestrians walking below from injury or death. In Rhode Island, the Plaintiff could use the evidence of the covered walkway in the premises liability trial to show the Liability of the scaffolding company. In all other states and in federal court this Subsequent remedial measure does not get into evidence and the Jury never finds out about it!
However, under the majority Subsequent remedial rule 407, the evidence of the subsequent remedial measure may be disclosed to the Jury if the scaffolding company asserts at trial that it would be impossible for them to build a covered walkway or that it would be cost prohibitive. In all likelihood the judge would issue a curative instruction to the jury that the remedial measure cannot be used for purposes of liability only to impeach the credibility of the scaffolding company’s assertions.
If subsequent remedial measures are so probative and reliable then why are they not allowed into evidence in nearly every state but RI?
According to US legal “After an accident occurs on or with a person’s property, that person may take remedial steps to ensure that the accident is not repeated in future. It is sound public policy to encourage people to take post accident remedial measures to reduce the possibility of others being exposed to similar accidents. http://definitions.uslegal.com/s/subsequent-remedial-measures/
What are the most common types of Premises Liability Claims in Rhode Island and Providence Plantations?
- Dog attack and Dog Bite Claims
- Swimming Pool accidents and Drowning
- Balcony, deck or porch accident / collapse
- Negligent Security enabling rape, assault or murder
- Slip and Falls caused by liquid, water, oil or other slippery substance
- Inadequate Lighting
- Defective Stairs/ Elevators/ escalators or ramps
- Trip and fall