Subsequent Remedial Measures

By Jedidiah McKeehan

When I speak to personal injury clients about their cases, they will occasionally tell me something like, “well, this should be an easy case, but I saw them out there fixing the broken step I fell on the very next step.”

Why would this be important to begin with? Well, in slip and fall cases, one of the key items is that the defendant, “knew, or should have known of a dangerous condition.” So what we are saying is that by fixing a dangerous condition right after an injury, we are saying that defendant knew of a dangerous condition, and only after someone got hurt are they now getting around to fixing the dangerous condition.

Unfortunately, I have to tell these clients we cannot even bring up the fact that they fixed the step because fixing a condition that caused an injury is considered a subsequent remedial measure and it is inadmissible.

How can this be? Tennessee Rule of Evidence 407 states, “When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove strict liability, negligence, or culpable conduct in connection with the event.”

Okay, so now we know that the rule states, which you may think is ridiculous, but let’s talk about the reason this rule exists.

The premise for why subsequent remedial measures are not admissible has to do with the fact that hindsight is 20/20. Most people think that if they see someone correcting a dangerous condition, then they should have foreseen the injury that occurred, and have remedied the situation before the injury occurring.

Further, just as a matter of public policy, it makes sense to allow people to fix dangerous conditions without penalizing them for fixing things. For example, if someone falls on a broken step and the owner of the steps knows that if they fix them that may hurt the case against them, it would appear they may be better off just leaving the broken step the way it is. Of course, that may lead to other people getting hurt.

Believe me, as a personal injury attorney, I would love nothing more than to use repairs as proof that someone knew of a dangerous condition. Unfortunately, the law prevents people from doing just that.

 

Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties.  He works in many areas, including divorce, custody, criminal, personal injury, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.

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