SUBSEQUENT REMEDIAL MEASURES ARE INADMISSIBLE TO PROVE NEGLIGENCE.

EXCEPTION (ADMISSIBLE TO PROVE OTHER MATTERS)



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GENERAL RULE

In premises liability cases
, to prove negligence or fault, California law generally does not permit you to introduce into evidence that the possessor of land repaired the dangerous condition after the accident. See California Evidence Code 1151.

“The public policy promoted by exclusion of such evidence is that of encouraging persons to take subsequent precautions for the purpose of promoting safety, without fear of having such conduct used to establish liability.” Jefferson, Cal. Evidence Bench book, Vol. 2, 34.2.  See also Westbrooks v. Gordon H. Ball, Inc. (1967) 248 Cal.App.2d 209, 215-216.

EXCEPTIONS

But, there are number of exceptions to the above-described exclusionary rule.  Examples:

1. DISCOVERY: Evidence of subsequent remedial measures is permitted to be obtained through pre-trial discovery (depositions, interrogatories, request for production of documents, etc.)

The rule against subsequent admissible measures [Evidence Code Section 1151) is one of admissibility, not discoverability [Bank of the Orient v. Superior Court (1977) 67 Cal.App.3d 588, 599.

2. Evidence of repairs after an incident is admissible in court for OTHER PURPOSES (that is, OTHER THAN TO SHOW NEGLIGENCE OR CULPABLE CONDUCT) [See California Evidence Code 355; Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 615; Alpert v. Villa Romano Homeowners Association (2000) 81 Cal.App.4th 1320] as, for example:

(A)    IMPEACHMENT: To impeach a witness who denies that the location of the accident was in a dangerous condition when the accident occurred [Inyo Chemical Co. v. City of Los Angeles (1936) 5 Cal.2d 525, 543-544; Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 809-810; Daggett v. Atchison, Topeka & Santa Fe Railroad Co. (1957) 48 Cal.2d 655, 661; Pierce v. J.C. Penney Co. (1959) 167 Cal.App.2d 3 at 7; Sanchez v. Bagues & Sons Mortuaries (1969) 271 Cal.App.2d 188, 191-192];

Such matters may be admissible to establish impeachment (attacking witness credibility), but only if the witness being questioned made or ordered the subsequent safety measures. [Sanchez v. Bagues & Sons Mortuaries (1969) 271 Cal.App.2d 188, 191];

(B)    FEASIBILITY TO ELIMINATE DANGER: To show the practical feasibility (ease and lack of expense) of eliminating the cause of the accident [Baldwin Contracting Co. v. Winston Steel Works (1965) 236 Cal.App2d 565; Love v. Wolf (1967) 249 Cal.App.2d 822, 831];

(C)   TO SHOW CONTROL OF PREMISES: To show that the defendant was in control of the injury-causing condition [Morehouse v. Taubman (1970) 5 Cal.App.3d 548, 555;  Alpert v. Villa Romano Homeowners Association (2000) 81 Cal.App.4th 1320,1340; "Evidence of repairs, improvements, safety precautions, or like remedial or preventive measures taken after an injury may be admitted for the purpose of establishing that at the time of the accident, the defendant owned or controlled the place, thing, or activity which occasioned the injury, at least where ownership or control is controverted, and subject to other appropriate limitations." (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1168];

(D)   TO SHOW DUTY: To show the duty to take safety precautions [Morehouse v. Taubman 
(1970) 5 Cal.App.3d 548, 555];  

(E)    SUBSEQUENT REPAIRS BY THIRD PARTY:  Subsequent remedial changes taken by an entity other than defendant to correct a dangerous condition is admissible [Magnante v. Pettibone-Wood Mfg. Co. (1986) 183 Cal.App.3d 764, 768; Santilli v. Otis Elevator Co. (1989) 215 Cal.App.3d 210, 214.)]; 

(F)    SPOLIATION OF EVIDENCE ARGUMENT:  After the incident a defendant often repairs dangerous conditions and destroys, that is, does not preserve the injury-causing instrumentality or condition making it impossible for the plaintiff's experts to evaluate the condition to plaintiff's prejudice. Request that the court permit the plaintiff to cross-examine defendant and prove that: (1) when repairs were made, the defendant destroyed the injury-causing instrumentality, and (2) plaintiff did not have the opportunity to inspect same.

Note: Where evidence is admissible for one purpose but not for another, the court, upon request, must restrict the evidence to its proper purposes and instruct the jury to disregard it for any other purpose instead of excluding the evidence altogether.  [California Evidence Code 355; Alpert v. Villa Romano Homeowners Association (2000) 81 Cal.App.4th 1320, 1341, fn. 20].  If the defendant does not request a limiting instruction, the court does not have a sua sponte duty to give a limiting instruction. [Daggett v. Atchison, Topeka & Santa Fe Railroad Co. (1957) 48 Cal.2d 655, 655-6].

If you've been the victim of a premises liability incident, contact attorney Matthew B. Tozer for a free consultation.

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change.  This advice is based on California law.  No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own counsel prior to relying on any information on this website.

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