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Univ. of South Carolina School of Law

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Wednesday, November 3, 2010

Changing Its Colors: Court Of Appeals Of Mississippi Deems Carpet Color Change Inadmissible Under Rule 407

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the 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, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Thus, evidence of a subsequent remedial measure is inadmissible for some purposes but admissible for other purposes. It is important to keep in mind, though, that, as the rule indicates, a party can only use evidence of such a measure to prove feasibility of the measure (or ownership or control) if the other party has controverted feasibility (or ownership or control) as is made clear by the recent opinion of the Court of Appeals of Mississippi in Manning v. Gruich, 2010 WL 4188278 (Miss.App. 2010).

In Gruich, the following facts were established:

[Frank] Gruich owns Gruich Pharmacy Shoppe in Biloxi, Mississippi. Upon entering the pharmacy, patrons must step from the parking lot onto the sidewalk, which is three-and-a-half-inches high. For years, there was a green indoor/outdoor carpet that led from the parking lot to the front door of the pharmacy. The carpet was glued to the cement, and the edge of the carpet was folded over the curb.

On April 2, 2003, [Sarah] Manning went to the pharmacy to fill a prescription. Manning attempted to step onto the sidewalk, fell, and broke her left leg. Manning was rushed to the hospital. She waited there for hours before she received medical care. Then, she was transported to an out-of-state hospital for surgery. During this ordeal, Manning almost lost her leg. There is also evidence that she acquired further complications with her leg, which occurred in a subsequent surgery. Ultimately, the damage caused to Manning's leg left her physically disabled.

Manning thereafter filed a lawsuit against Gruich, alleging that her injury was caused by his negligence in maintaining his premises

In preparation for trial, Manning took three sets of photographs of the area of her fall. The first set of photographs was taken within a few weeks of the incident and showed the carpet as it existed at the time of her fall. The photographs also showed that the curb to the left of the carpet was painted blue, indicating a handicap-accessible area; and the curb to the right of the carpet was painted yellow. The second set of photographs was taken approximately three months after the incident and showed changes that had been made to the carpet. At that time, the lip of the carpet had been removed, and the part of the curb that was once covered by the carpet was painted yellow. The third set of photographs was taken after Hurricane Katrina. Because of the hurricane, Gruich completely removed the carpet, which exposed the concrete that once lay underneath the carpet.

The court deemed the first and third set of photographs admissible, and Manning claimed that the second set of photographs was also admissible, inter alia, to show the feasibility of the precautionary measure of painting the carpet to make the area less dangerous. The trial court, however, deemed the photographs inadmissible, and the jury eventually returned a verdict for Gruich.

Manning thereafter appealed, claiming, inter alia, that the exclusion of these photographs made it so that she was not allowed to present her theory of the case concerning the effectiveness of a color transition. The Court of Appeals of Mississippi disagreed, finding that  

Manning's counsel was allowed to question Gruich about the painted curb during cross-examination.

Gruich testified that the left side of the curb was painted blue to indicate handicap accessibility. He testified that there was no specific reason why the right side of the curb was painted yellow; it had been painted yellow for years. Manning's counsel asked Gruich whether he thought that painting the curb yellow would make it easier for a patron to gauge the height of the step. Gruich responded: "Not necessarily, no.” Manning's counsel asked Gruich whether he agreed that removing the carpet would make it easier to gauge the height of the curb, and Gruich disagreed. Gruich did agree that if the carpet had been bulging, it would be a dangerous situation. In addition, the first set of photographs, which were admitted into evidence, clearly showed that the curb to the left of the carpet was blue, and the curb to the right of the carpet was yellow.

Gruich disagreed that either painting the curb or removing the carpet would make it easier for patrons to gauge the height of the step. However, this does not equate to a dispute of the feasibility of precautionary measures. Gruich simply did not believe that these measures would help; he did not dispute the fact that they could be done. Because Gruich did not dispute whether precautionary measures could be taken and Manning was allowed to question Gruich about her theory of the case, we find that this exception to Rule 407 does not apply. This argument is without merit.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/11/407-manning-v-gruich-so3d-2010-wl-4188278missapp2010.html

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