EvidenceProf Blog

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

Saturday, November 19, 2011

Things We Lost In The Fire: NY Opinion Reveals That The State Bars Evidence Of Subsequent Remedial Measures

Federal Rule of Evidence 407 provides that

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

And while New York doesn't have codified rules of evidence, the recent opinion of the Supreme Court of New York, Appellate Division, First Department in Stolowski v. 234 East 178th Street LLC, 2011 WL 5527716 (N.Y.A.D. 1 Dept. 2011), makes clear that the state similarly deems evidence of subsequent remedial measures inadmissible subject to certain exceptions.

The facts in Stolowski aren't entirely clear from the court's opinion, but it appears as if plaintiffs sued the defendant based upon injuries and/or death suffered by their relatives in a fire at a building owned by the defendant. The defendant thereafter filed a motion for a protective order as to post-fire repairs and remedial measures. Apparently, the defendant took remedial measures to correct a defective condition at the site of the fire. 

While the trial court denied the defendant's motion, the Supreme Court of New York, Appellate Division, First Department reversed, concluding that

The records of defendant's post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence.

The plaintiffs apparently claimed that evidence of the post-fire repairs would be admissible to impeach defendant witness', but the Appellate Division concluded that "[c]ontrary to plaintiffs' contentions, 'general credibility impeachment' is not an exception." The court also found that "[c]ontrol is not at issue here since defendant concedes that it owns the premises." 



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