EvidenceProf Blog

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

Tuesday, January 21, 2014

Ugly Can be Inadmissible: 1st Circuit Finds Evidence of New Hangtag Inadmissible in Escalator Injury Case

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.

In some cases, however, it is so clear that evidence of a subsequent remedial measure is lacking in any probative value that a court does not even need to apply Rule 407. This was the case in Geshke v. Crocs, Inc., 2014 WL 185538 (1st Cir. 2014).

Here's the first paragraph of the court's opinion in Geshke:

  • CROCS are odd looking shoes, known for their comfort. The plaintiff alleges that this reputation for comfort masks a hidden peril: the shoes present a heightened risk to the safety of wearers using escalators, and the manufacturer has failed to warn of this risk. The district court found these allegations unsupported and entered summary judgment accordingly. The plaintiff appeals. After careful consideration, we affirm.

So, what exactly did the plaintiff allege? According to the First Circuit,

plaintiff-appellant Nancy Geshke visited Boston with her husband, son, and nine-year-old daughter....[T]he family boarded a descending escalator at the Aquarium Station of the Massachusetts Bay Transportation Authority (MBTA). The daughter, N.K., was wearing a pair of sandals manufactured by defendant-appellee Crocs, Inc. Those sandals, popularly known as CROCS, are a type of soft-soled resin clog.  

The escalator bore warning signs admonishing riders about the importance of safe riding practices. Despite these admonitions, N.K .'s CROCS-shod right foot became entrapped in the side of the moving stairway. While N.K. screamed, an MBTA worker unsuccessfully attempted to activate the escalator's emergency brake. A bystander rushed to the rescue, freeing N.K.'s foot before she reached the bottom comb plate (but not before she sustained injuries).

The plaintiff had purchased N.K's CROCS sandals near the family's California home in 2009. For present purposes, the defendant concedes that the sandals, when purchased, were not accompanied by any warnings with respect to the dangers of escalator entrapment.

As noted, the district court granted summary judgment to Crocs, and this led the plaintiff on appeal to "pin[] her final hope on the defendant's [subsequent] decision to include a generalized escalator safety warning on the hangtag of its sandals." Specifically, "[t]he label exhorts purchasers to adhere to safe escalator-riding practices such as standing in the middle of the step, refraining from contact with surfaces next to the moving stairs, stepping carefully upon ingress and egress, and holding children's hands." According to the plaintiff, "the adoption of this warning shows that the defendant must believe that its sandals present an escalator safety issue."

The First Circuit responded to this argument with the following footnote:

FN6. This argument raises obvious questions about the applicability of the rule barring the admission in tort cases of evidence of subsequent remedial measures. See Fed.R.Evid. 407....Neither party has briefed this issue, and we need not decide it. As we explain below, the new hangtag is not probative of a past failure to warn.

The reason that the court did not not reach this issue was that it concluded as follows:

This evidence does not advance the plaintiff's cause. The warning label itself makes no mention of any special danger posed by CROCS. It speaks, in the most general terms, about escalator safety. It does not in any way suggest that CROCS either present a heightened risk of danger on escalators or are more prone to escalator mishaps than other footwear.



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The court's reasoning in the final paragraph quoted calls to mind the sardonic definition put forth by Ambrose Beirce in the Devil's Dictionary.

"TECHNICALITY, n. In an English court a man named Home was tried for slander in having accused his neighbor of murder. His exact words were: "Sir Thomas Holt hath taken a cleaver and stricken his cook upon the head, so that one side of the head fell upon one shoulder and the other side upon the other shoulder." The defendant was acquitted by instruction of the court, the learned judges holding that the words did not charge murder, for they did not affirm the death of the cook, that being only an inference."

FN6 should have been decisive. The 1st Circuit's opinion is far to cleaver (pun intended).

Posted by: Daniel | Jan 23, 2014 9:24:50 PM

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