EvidenceProf Blog

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

Saturday, January 23, 2021

Court Precludes Evidence of Subsequent Remedial Measures in Slip & Fall Action Against Hobby Lobby

Federal Rule of Evidence 407 states 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 its recent opinion in Miciotto v. Hobby Lobby Stores, Inc., 2021 WL 220116 (W.D.La. 2021), the United States District Court for the Western District of Louisiana dealt with a fairly straightforward application of Rule 407.

In Miciotto, Susan Miciotto brought against Hobby Lobby

seeking damages for personal injuries related to an incident that occurred on November 30, 2017, outside the Hobby Lobby store in Lafayette, Louisiana. Miciotto allege[d] that, as she exited the store, she tripped and fell on a warped or broken wooden expansion joint.

To support this claim, Miciotto sought to introduce evidence that,

five months after the accident, Hobby Lobby contracted with Ladybugs Parking Lot Sweeping, Inc. (“Ladybugs”), for the repair of approximately 200 feet of wooden expansion joints on the Hobby Lobby premises and on the adjacent premises of a Hobby Lobby affiliate, Mardel. The entirety of the work was approved by Hobby Lobby, was billed to Hobby Lobby, and was accepted by the Hobby Lobby manager, Allen Calais. In connection with the repairs performed by Ladybugs, 25 photographs were taken on the premises of Hobby Lobby and Mardel depicting the expansion joints prior to and subsequent to repair.
Miciotto assert[ed] that, given the foregoing, evidence of subsequent remedial measures should be admissible because it reveals that the same type of condition involved in the plaintiff's accident was present throughout the Hobby Lobby and Mardel premises. Admission of this evidence would ensure that Hobby Lobby's negligence is determined according to what Hobby Lobby knew or should have known prior to the accident. Miciotto further assert[ed] that the evidence shows that Hobby Lobby had custody and control over the entire premises, including Mardel, as Hobby Lobby approved the work, received billing for the work, and the work was accepted by the Hobby Lobby manager.

The court, however, pretty easily granted Hobby Lobby's motion in limine to exclude this evidence, finding that (1) subsequent remedial measures are inadmissible to prove negligence; and (2) Hobby Lobby had not disputed control of the premises.



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