Thursday, February 16, 2012
Picture (Im)Perfect: Court Of Appeals Of Iowa Finds No Problem With Admission Of Photos Of Subsequent Remedial Measures
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
But what if evidence of a subsequent remedial measure is offered to prove the condition of the site of an accident? According to the recent opinion of the Court of Appeals of Iowa in Maiers v. Gansen, 2012 WL 469747 (Iowa App. 2012), such a use is proper. Based upon the facts of the case, I disagree.
In Gansen, Constance Maiers fractured her left elbow when she tripped on a raised portion of sidewalk in front of Priscilla Gansen's home. Maiers then filed a negligence action against Gansen, and the jury ultimately awarded Maiers $191,916.20, reduced to $163,128.77 based on the finding that Maiers was fifteen percent at fault. Gansen thereafter appealed, claiming that the district court erred under Rule 5.407 in allowing jurors to see photographs of the sidewalk taken after Maiers' fall showing the raised portion had been ground down to make the area safer for other pedestrians.
Maiers countered that Gansen's argument oversimplified Rule 5.407. Specifically, Maiers asserted that she introduced the photographs to show not only the height of the sidewalk pad, but the overall condition and color of the sidewalk and to rebut Gansen's argument that the hazard was open and obvious.
The Court of Appeals of Iowa agreed with Maiers, finding that "[i]n the present action, the disputed issue was not merely that a displacement existed between the two sidewalk pads, but the extent of the displacement. The court then noted that
We considered a similar set of circumstances in [Eldridge v. Casey's Gen. Stores, Inc., 533 N.W.2d 569, 570 (Iowa Ct.App.1995)]. In that case, a plaintiff sought to admit photographs of a crack in the pavement which the defendant subsequently spray painted orange....Two days after the fall, the plaintiff's husband photographed the crack, using a ruler to measure the unevenness; the photographs also revealed the defendant's efforts to warn others of the tripping hazard by virtue of the orange spray paint...Like the case at bar, the photographs showing the defendant's remedial measure were the only images available....The district court noted Eldridge's right to depict the location of the fall, as well as the business operator's interest in excluding evidence of subsequent remedial measures because of the possible prejudicial effect. Because the court admitted the pictures to show the measurements, and advised Eldridge not to rely on the photos to draw attention to the operator's remedial measure, we concluded the decision "was a sensible compromise to balance the parties' competing interests."
Gadsen countered that "Eldridge should not govern because the elevation in the pavement had not been altered, whereas here, the act of grinding down Gansen's sidewalk hindered the ability to measure the rise." The court disagreed, concluding that
We do not believe that this distinction undermines the applicability of the Eldridge holding. In the instant case, the district court admitted seventeen photographs, each showing different angles of the sidewalk. Some of the photographs included points of reference, such as a ruler, keychain, and shoe. In some of the photographs, the plaintiff placed a hardcover book across the surface of the ungrounded portion of the sidewalk pad, aligning the book so that its edge would simulate the lip of the cement before the repair. Doing so demonstrated the extent of the elevation before the remedial measure. The district court was correct in deciding that the exhibits assisted the jury by approximating the extent to which one sidewalk pad rose above the other. The photos not including measurements were properly admitted to show the similarity in color of the sidewalk segments. They corroborated witness testimony that the two surfaces, as well as the sides of the pads, were the same shade of grey, making it more difficult to perceive the change in surface height.
I respectfully disagree. The prejudicial effect of the evidence was obvious: The jury would use evidence of the repair to prove that (Gansen thought that) there was a problem with the sidewalk and the time of the accident. And what about the probative value? As the court noted, the sidewalk was altered before the photographs were taken, and Maiers used instrumentalities to simulate what the sidewalk looked like before the accident. But was this accurate? Couldn't there simply have been a diagram or some other type of demonstrative evidence to demonstrate the unevenness? It seems to me that the "compromise" struck by the court was anything but sensible.