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

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Tuesday, January 29, 2013

The Thin White Line: 3rd Circuit Seems to Imply Repainting White Line At Railroad Crossing Might Be Admissible Despite Rule 407

Federal Rule of Evidence 407 provides that

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.

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.

So, let's say that a motorcyclist is approaching a railroad crossing, sees a train approaching, and tries to hit the brakes, but his front brake locks and he flies over his handlebars, crashing into the train and becoming partially paralyzed. In addition, assume that before the accident, there was a white line indicating the presence of a railroad crossing before the point at which the motorcyclist hit his brakes but that the line had faded at the time of the accident and was repainted after the accident. Will evidence of the repainting of the line be admissible or excluded under Rule 407? Let's take a look at the recent opinion of the Third Circuit in Zimmerman v. Norfolk Southern Corp., 2013 WL 238789 (3rd Cir. 2013).

In Zimmerman, the facts were as stated above, with Norfolk Southern moving for summary judgment after the plaintiff asserted three tort claims against it. The district court granted Norfolk Southern's motion for summary judgment, but the Third Circuit reversed in part. Part of the basis for the reversal was the fact that "[p]hotographs suggest[ed] that there once was a white line north of the crossing, but that the line had faded by the time of Zimmerman's collision." 

In a footnote addressing the admissibility of these photographs, the Third Circuit noted that

There is no painted line in a 2008 photograph, but there is a line in a 2011 photograph....Of course, subsequent remedial measures are inadmissible to prove negligence. See Fed.R.Evid. 407. Yet the paint in the 2011 photograph suggests that the pavement was painted before the 2008 accident, but that the marking faded and required a fresh coat of paint. This is not the only possible inference from the facts, but it is a "reasonable inference," which is all that is necessary at this stage. 

I'm not sure that I'm getting the Third Circuit's point. Is the Third Circuit implying that Norfolk Southern's repainting of the line after Zimmerman's accident could be used to show that, at the time of his accudent, "the marking [had] faded and required a fresh coat of paint? If that's the case, the 2011 photograph would be admissible because it would be used to show that there was a need for (a stronger) warning at the time of Zimmerman's accident.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/01/federal-rule-of-evidence-407provides-that-when-measures-are-taken-that-would-have-made-an-earlier-injury-or-harm-less-like.html

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