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Univ. of South Carolina School of Law

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Wednesday, May 22, 2013

Chutes & Ladders: Court of Appeals of Kentucky Finds Evidence of Ladder Switch Inadmissible Under Rule 407

Similar to its federal counterpartKentucky Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event 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.

So, let's say that a plaintiff is injured when he falls off of his employer's ladder, and the ladder is later replaced after the accident. If the plaintiff's supervisor testifies at trial that he is unaware that the ladder was replaced, is evidence of the ladder change admissible to impeach him under Rule 407? According to the recent opinion of the Court of Appeals of Kentucky in Durbin v. CSX Transp., Inc., 2013 WL 2120317 (Ky.App. 2013), the answer is "no."

In Durbin, Robert Lee Durbin appealed from a judgment dismissing his claims under the Federal Employers Liability Act against CSX Transportation, Inc. (CSX) following an adverse jury verdict.

Durbin was an employee of CSX and its predecessor for 35 years. His job responsibilities included general maintenance work. On January 21, 2004, Durbin and another employee were assigned to install new drop ceilings, lighting and a floor in a CSX office located in Patio, Kentucky. While dismounting a ladder during the course of this work, Durbin fell and sustained an injury to his right knee.

Before trial,

CSX moved to exclude any evidence or testimony that it had replaced the ladder from which Durbin fell after the accident. The trial court granted the motion. During the trial, CSX supervisor Frank Walz testified that he had inspected the ladder after the accident. He admitted that the ladder was wobbly when no weight was applied to it, but stated that it was steady with a person standing on the steps. On cross-examination, Durbin attempted to ask Walz whether the ladder was replaced after the accident. The trial court permitted Durbin to ask Walz if he had any personal knowledge whether the ladder had been replaced, to which Walz replied that he did not know

The court thereafter precluded Durbin from presenting evidence that CSX replaced the ladder after his accident.

After the jury found for CSX, Durbin appealed, claiming that the trial court's ruling was erroneous under Rule 407 because the evidence of the ladder change was admissible to impeach Walz. The Court of Appeals of Kentucky disagreed, finding that

In this case,...Walz conceded that the ladder was wobbly without weight applied to it, but asserted that it was steady with a person standing on the steps. Evidence of CSX's subsequent replacement of the ladder does not tend to impeach Walz's testimony regarding the condition of the ladder at the time of the accident. Rather, this evidence merely invited the jury to infer negligence on CSX's part based on its post-accident conduct, which is expressly prohibited by KRE 407. Furthermore, Walz stated that he had no personal knowledge whether the ladder was replaced. Therefore, the trial court did not abuse its discretion by excluding the evidence.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/05/407-durbin-v-csx-transp-incnot-reported-in-sw3d-2013-wl-2120317kyapp2013.html

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