Monday, May 6, 2013
Down the Toilet: 1st Circuit Find Evidence Concerning Toilet Repair Inadmissible Subsequent Remedial Measure Evidence
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:
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.
In many cases, the application of Rule 407 proves fatal for a plaintiff's claim, and that was certainly the case in the recent opinion of the First Circuit in Nieves-Romero v. United States, 2013 WL 1849159 (1st Cir. 2013).In Nieves-Romero, José Nieves-Romero,
who uses a wheelchair, was on the premises of the Veterans Affairs (VA) Hospital in San Juan. While awaiting x-ray results, he repaired to a handicapped-accessible public restroom. As he attempted to transfer himself from his wheelchair onto the toilet, the toilet seat came loose and he fell to the floor. He sustained injuries as a result of the fall.
Nieves-Romero thereafter brought an action against the government under the Federal Tort Claims Act, claiming that the VA had negligently maintained the restroom and that the loose toilet seat provoked his fall.
The government promptly moved for summary judgment dismissing the complaint, and the district court granted the motion. Nieves-Romero then appealed, but the First Circuit found that his problem was that, while it appeared that the toilet seat was defective at some point,
[t]he record contain[ed] no significantly probative evidence as to when the dangerous condition arose. Consequently, the plaintiff's claim that the VA was on constructive notice of the defect [wa]s without foundation.
In response, Nieves-Romero "point[ed] to evidence of measures taken to repair the toilet after his accident." The problem for the plaintiff, however, was that "[t]he law is clear...that evidence of subsequent remedial measures is inadmissible to prove negligence. See Fed.R.Evid. 407."