Subsequent Remedial Measures

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from an existing client. We were discussing a settlement offer in his fall case. He asked, “won’t my case be a slam dunk once we show the jury that the defendant repaired the defect in the walkway that caused me to fall after we filed suit?”

This question requires us to explain that common sense and evidence rules sometimes have very little in common.

If you have proof of a repair being made after a fall, such proof would be very persuasive that the defendant knew that the defect was dangerous. If not, then why make a change or repair?

Just common sense, right?

But the rules of evidence reflect specific policy preferences by society in general. The rule against permitting evidence of subsequent remedial measures is based upon a policy determination that courts should do nothing to discourage defendants from repairing their property to eliminate existing hazards.

The argument behind the rule is that businesses would never repair a pothole or broken curb if doing so could be used in a trial against them filed by someone who fell.

The rule reads as follows:

When measures are taken that would have made an earlier injury 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.

So the proof the client hoped would come before the jury and make his case a slam dunk is barred. The jury most likely will never know about the repairs.

But is that the end of the story? No.

The rule barring evidence of subsequent remedial measures has the following exception:

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.

The most important phrase here is “feasibility of precautionary measures.”

The defendant can be asked:

• Would it have been feasible to either hire someone to patch the pothole?
• Would it have been feasible to buy asphalt patch mix at the local hardware store and fill the pothole so that there would not be a hole in the walkway supplied to your customer?

Of course, if the defendant denies feasibility, then proof of the repair is admissible to show that, indeed, a repair was feasible. … This can be very persuasive evidence because it not only proves that a repair was feasible, it proves that a defendant lied when he answered no to the feasibility question.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”