EvidenceProf Blog

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

Friday, February 15, 2013

Watch Your Step: Supreme Court of Connecticut Finds Subsequent Remedial Measure Evidence Improperly Admitted

Section 4-7 of the Connecticut Code of Evidence states: 

(a) General rule. Except as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures.
(b) Strict product liability of goods. Where a theory of liability relied on by a party is strict product liability, evidence of such measures taken after an event is admissible.

The recent opinion of the Supreme Court of Connecticut in Duncan v. Mill Management Co. of Greenwich, Inc., 2013 WL 515490 (Conn. 2013), does a nice job of breaking down the justifications for the section and when it does and doesn't apply.

In Duncan, Catherine O. Duncan brought a negligence action against the defendants, Mill Management Company of Greenwich, Inc. and the Greenwich Chateau Condominium Association after she fell and was injured when stepping down from the roof deck of the Greenwich Chateau Condominiums, where she resided.

Residents of the condominium building accessed the roof deck by stepping onto a single concrete step measuring ten inches deep and ten inches high, which led to a door that opened onto the roof deck. On April 17, 2005, the plaintiff's foot missed the step as she descended from the roof deck, and she slipped, sustaining a fractured left ankle and other injuries.

After the fall,

the plaintiff instructed the management company's property manager, Richard Deutsch, to do "something... to remedy the [step]...." Deutsch then arranged for a contractor to build replacement stairs over the original concrete step. The plaintiff thereafter commenced the present action, alleging, inter alia, that the defendants negligently had maintained the original step in violation of the building code. In their answer, the defendants raised as special defenses that, to the extent the plaintiff had been injured, the plaintiff's own negligence proximately caused her fall, and that the plaintiff's status as the president of the condominium association meant that the failure to ensure safe access to the roof deck constituted a breach of her fiduciary duty to the condominium association.

At trial, the court allowed for evidence of this subsequent remedial measure to be admitted, and the jury eventually found in favor of the plaintiff. The defendants thereafter appealed, claiming that this evidence should have been deemed inadmissible under Section 4-7 of the Connecticut Code of Evidence.

The Supreme Court of Connecticut initially noted that

Historically, we have justified the exclusion of subsequent remedial measures evidence under two principal theories. First, we have observed that such evidence is likely to be of relatively minor probative value....As we reasoned in Nalley, in which we first announced the rule excluding evidence of subsequent remedial measures, "[t]he fact that an accident has happened and some person has been injured, immediately puts a party on a higher plane of diligence and duty from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than condemn the person so acting. If the subsequent act is made to reflect back [on] the prior one, although it is done [on] the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negligence which has no business there, not being in existence at the time."...

Our more recent cases instead have focused on a second, public policy based justification, namely, that allowing evidence of subsequent remedial measures to prove negligence "discourages alleged tortfeasors from repairing hazards, thereby perpetuating the danger."...A broad exclusionary rule prohibiting the use of such evidence to prove negligence therefore "fosters the public good by allowing tortfeasors to repair hazards without fear of having the repair used as proof of negligence, even though it requires the plaintiff to make a case without the use of evidence of the subsequent repairs." 

The Connecticut Supremes then concluded that the trial court erred by deeming evidence of the subsequent remedial measure admissible, concluding that

In the present case, neither control nor the feasibility of repairs was controverted. In their pretrial motion in limine, in which the defendants sought to preclude evidence of the subsequent remedial measures, they expressly conceded these issues, explaining that "there is no issue as to what entity controlled the stairway at issue. The defendants have not contested this issue and will not contest it at trial. Furthermore, the defendants are not contesting that alternat[ive] stairway designs were feasible for the roof deck and stairway at issue." Moreover, unlike in Rokus, the layout of the accident scene in the present case was not a critical issue, and the plaintiff's stated intention of admitting the photographs for layout purposes, such as to demonstrate to the jury that the step was made out of concrete, could have been accomplished in a far less prejudicial manner.



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