EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, November 17, 2008

Driving That Train: Supreme Court Of Tennessee Denies Plaintiffs' Attempt To Get Around Rule 407 In Train Crossing Accident Case

I have seen plaintiffs make some squirrely arguments to try to get around Federal Rule of Evidence 407 and state counterparts, but the plaintiiff's attempt to do so in Tennie Martin et al. v. Norfolk Southern Railway Company et al., 2008 WL 4890252 (Tenn. 2008), has to take the cake.

Norfolk Southern arose out of the tragic death of Kathryn Martin, who was killed when her vehicle was hit by a train.  Thereafter, various surviving family members sued Norfolk Southern (and its engineer), claiming that it permitted vegetation at the crossing to block Mrs. Martin's view of the approaching train.  The defendants moved for summary judgment dismissing the complaint, and the trial judge granted the motion, prompting the plaintiffs' appeal, which eventually reached the Supreme Court of Tennessee.

And while the court found several genuine issues of material fact rendered the trial court's entry of summary judgment erroneous, it also found that the plaintiffs would not be able to present evidence at trial of a subsequent remedial measure taken by Norfolk Southern.

Specifically, Norfolk Southern cleared the vegetation at the crossing thirty-one months after Mrs. Martin's death.  The trial judge made a pre-trial evidentiary ruling that this evidence would be inadmissible during the compensatory damages stage of the trial pursuant to Tennessee Rule of Evidence 407, which states that:

     When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove strict liability, negligence, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving controverted ownership, control, or feasibility of precautionary measures, or impeachment."

On appeal, the plaintiffs did not claim that the evidence that Norfolk Southern cleared the vegetation was admissible for one of the permissible purposes listed in Rule 407; instead, they claimed that the clearing of the vegetation was not a subsequent remedial measure.  Specifically, the plaintiffs

     "contend[ed] that the clearing was not subsequent because it was separated by too great a period of time. Furthermore, they argue[d] that the clearing was not remedial because it was carried out in accordance with Norfolk's internal policies rather than with the intent of remedying the condition that allegedly lead to Mrs. Martin's death."

I think that anyone looking at the text of Rule 407 can see that these arguments don't hold any water, and that is exactly what the Supreme Court of Tennessee found,

     "conclud[ing] that these arguments [we]re without merit. The clearing [wa]s remedial because it corrected an allegedly dangerous condition and made the crossing safer for future motorists....That the clearing was carried out pursuant to corporate policy does not undermine the remedial nature of the action. In addition, the clearing of the vegetation undisputedly followed the accident giving rise to this action....That it occurred over two years later does not make the event any less subsequent."



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