Friday, September 2, 2011
Wrong Turn?: Supreme Court Of Montana Finds Placement Of Sign At Intersection After Accident Not Admissible To Impeach Under Rule 407
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 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.
So, evidence of subsequent remedial measures are not admissible to probve negligence, but it is admissible to impeach a witness. So, let's say that a witness testified concerning the (lack of) dangerousness in the intersection in which an accident occurred. Can the plaintiff then present evidence of a "no left turn" sign placed at the intersection after the accident, not to prove negligence, but to impeach the witness' testimony? According to the recent opinion of the Supreme Court of Montana in United Tool Rental, Inc. v. Riverside Contracting, Inc., 2011 WL 2011 WL 3847217 (Mont. 2011), the answer is "no."
In Riverside Contracting, on July 13, 2007, Lynn Paulsen, an employee of United Tool Rental (UTR),
was driving a work truck southbound through a construction zone on Highway 93. Ahead of Paulsen, a minivan and two other vehicles were stopped at the intersection of Highway 93 and Old Highway 93, while the lead vehicle attempted to make a left-hand turn onto Old Highway 93. Paulsen rear-ended the minivan and then veered into the northbound lane and collided with a vehicle driven by Ann Marie Matt....
In the months leading up to the crash, construction barricades had been placed at the intersection of Old Highway 93 and Highway 93 to prevent vehicles from negotiating left-hand turns from southbound Highway 93 onto Old Highway 93. The barricades were removed on or around June 11, 2007.
Thereafter, "[f]our days after the crash, the DOT replaced the construction barricades at the intersection, citing concerns from the Montana Highway Patrol (MHP) and an increase in summer traffic." Moreover,
Six days after the crash, Trooper Michael Gehl, the investigating MHP officer, authored a memorandum regarding his concerns about Highway 93. Trooper Gehl expressed concern that (1) the grade of the roadway created a substantial blind spot for motorists; (2) the limited area of roadway between guardrails prevented vehicles from avoiding collision; (3) the location of the Old Highway 93 intersection posed an imminent hazard; and (4) insufficient signage existed indicating the presence of a construction zone and a "no left turn" sign was necessary. A short time later, the DOT erected a "no left turn" sign at the intersection of Old Highway 93 and Highway 93.
Matt eventually sued UTR and Paulsen, and the UTR and Paulsen in turn sought contribution from the State of Montana DOT, Riverside Contracting, Inc., Highway Technologies, Inc., and Carter & Burgess, Inc. (collectively the "Construction Parties"), alleging that their negligent design, construction, and maintenance of Highway 93 contributed to the crash. UTR and Paulsen subsequently settled with Matt and proceeded to trial against the Construction Parties, with the jury ultimately finding UTR and Paulsen were one hundred percent at fault for the crash.
UTR and Paulen then appealed, claiming, inter alia, that the trial court erred by precluding them from impeaching the testimony of the Construction Parties' witnesses regarding the dangerousness of the intersection where the crash occurred through evidence of the placement of the "not left turn" sign after the accident. In addressing this argument, the Supreme Court of Montana initially acknowledged that evidence of subsequent remedial measures can be admissible unde Montana Rule of Evidence 407 for impeachment purposes. That said, the court then noted that "'evidence of subsequent remedial measures...is not admissible for impeachment where the sole value of the impeachment rests on [the] same impermissible inference of prior negligence.'"
Accordingly, subsequent remedial measures are admissible for impeachment purposes "where the defendant goes beyond stating that the original condition was safe or adequate and attempts to make exaggerated claims that the condition was the safest possible...." To admit "such evidence when it does not directly impeach a witness's testimony or other evidence offered by a defendant contravenes the general rule that such evidence is inadmissible to prove negligence."
The Montana Supremes then found that it had not previously directly addressed the breadth of the impeachment exception to Rule 407," "a review of our subsequent remedial measures jurisprudence supports a narrow interpretation of the impeachment exception." Moreover, the court concluded that
Narrowly applying the impeachment exception here does not conflict with our Rule 407 jurisprudence and supports the general mandate that subsequent remedial measures are not admissible to prove negligence. The Construction Parties merely claimed their design, construction, and maintenance of Highway 93 were adequate. Because their defense did not go beyond denying negligence, as opposed to making exaggerated claims that their design, construction, and maintenance of Highway 93 were the safest or best, impeachment was not at issue here. The District Court did not abuse its broad discretion in excluding evidence of the post-crash placement of the "no left turn" sign.