Why Can’t We Tell the Jury they Repaired it After this Incident?

Why Can’t We Tell the Jury they Repaired it After this Incident?

You are a passenger in a vehicle driven by your spouse. Your spouse loses control while negotiating a bend in the road and crashes. This causes you to suffer several injuries. You find out the water on the road ponded, causing an extremely slippery conditions. You also find out this condition has been a problem on the road for a long time. You file suit against PennDOT and much to your amazement PennDOT denies there was a dangerous condition and blame your spouse for the incident. After thoroughly investigating the matter and heated litigation of the claim, your Bordas & Bordas attorney finds out that PennDOT put up warning signs and milled the road after the incident, in order to eliminate the ponding of the water and the slippery conditions.

You think, “FINALLY, the truth will come out and PennDOT will have to admit the incident was their fault.” However, much to your surprise, your attorney explains to you that the evidence of the post-accident repairs may not be admitted into evidence, because they are generally excluded. You think how can that be justice. Fortunately, you are represented by an attorney from the law firm of Bordas and Bordas, who will work to get the crucial evidence in front of the jury.

This article will generally explain to you what the law is on the admissibility of post-accident repairs and how your Bordas & Bordas attorney will get the evidence admitted.

DISCUSSION

Evidence of subsequent remedial measures is generally inadmissible. Pa. R. Evid. 407. While the general rule is to prevent admission of subsequent remedial measures, Pa. R. Evid. 407 does allow for admission under certain circumstances. According to the Pennsylvania Supreme Court, even if evidence of subsequent remedial measures falls into one of the exceptions provided in Pa. R. Evid. 407, the trial court must still weigh “whether the probative value of the evidence (in terms of feasibility and impeachment) exceed[s] its prejudicial impact.” Duchess v. Langston Corp., 564 Pa. 529, 560 (2001)

There are various exceptions that will allow the evidence of remedial repairs into evidence. One is to impeach a witness. In Smalls v. Pittsburgh-Corning Corp., the court stated that Pa. R. Evid. 407 “does not require the exclusion of evidence of subsequent measures when offered for impeachment….” 843 A.2d 410, 413 (Pa. Super. Ct. 2004). In Smalls, the defendant “introduced evidence that its asbestos-containing products did not release significant amounts of asbestos dust, and therefore, it could not have been a substantial factor in causing [plaintiff’s] asbestos-related disease.” Smalls, 843 A.2d at 413. In response, the plaintiff was permitted to introduce evidence that following his exposure, the defendant added a warning label to its products which read: “Caution, Contains asbestos fibers. Avoid creating dust. Breathing asbestos dust may cause serious bodily harm.” Id. In upholding the trial court’s admission of the subsequent remedial measure, the Superior Court stated that it was proper to admit said evidence as it impeached the claim of defendant’s witness that “the product was not prone to create dust.” Id.

In Brown v. Save-A-Lot, the court also allowed the admission of subsequent remedial measures to impeach a witness. 15 Pa. D. & C.5^th 376, 383 (2010). The plaintiff slipped and fell after entering defendant’s store on a rainy day. Brown, 15 Pa. D. & C.5^th at 378. The defendant’s witness testified that there had been a mat in the area where plaintiff fell before the accident occurred; however, plaintiff contended that the mat was not there when she fell and instead, placement of said mat was a subsequent remedial measure. Id at 382-83. Since the evidence of the alleged subsequent remedial measure was offered to impeach the statement of defendant’s witness, said evidence was properly admitted. Id at 383.

Another way to circumvent Pa. R. Evid. 407’s general bar to admission of subsequent remedial measures is to show that the remedial measures were considered prior to the subject accident. Even if the remedial measures were not actually implemented until after the subject accident, the fact that they were considered before the subject accident can avoid exclusion.

In Blumer v. Ford Motor Co., the plaintiff was killed due to a malfunctioning parking brake on his truck. 20 A.3d 1222, 1225 (Pa. Super. Ct. 2011).  Plaintiff was allowed to introduce evidence of design changes that were contemplated and predetermined prior to plaintiff’s accident but were not applied until after plaintiff’s accident (the model year of plaintiff’s truck was 2002, the accident occurred in 2004, and the design changes were applied to model year 2005). Blumer, 20 A.2d at 1227. Although the design changes were implemented subsequent to plaintiff’s accident, the court found that “measures that are predetermined before a particular accident occurs are not “remedial measures” under Pa. R. Evid. 407 because the measures are not intended to address the particular accident that gave rise to the harm.” Id. at 1227-28.

These are just a few examples of situations under which a jury will hear evidence of a defendants remedial repairs. To make sure your jury hears evidence of the action the defendant in your case took to rectify the problems that existed prior to your incident, make sure you have hired Bordas and Bordas to represent you in your claim.