Dealing with Subsequent Remedial Measures in Litigation

A recent case in Division II of the Court of Appeals of Washington, called Pupo v. Albertson’s, Inc., reminded us of the importance of properly litigating in the context of a defendant’s subsequent remedial measures after slip-and-fall injuries or really any type of personal injury.

When a plaintiff is injured and then later brings a lawsuit; frequently, at some point in that interim, the defendant will take steps to fix or “remedy” whatever may have caused the plaintiff’s injury.  For example, if there was sharp turn in a road where the yellow warning sign had been grown over with tree branches, a county or city might go cut the tree branches down after learning that there was an accident caused by rounding the turn too quickly.

In the context of litigation, when a defendant does something like that, the plaintiff is barred from presenting this as evidence to the jury and arguing that such steps to fix a cause of harm proves that there was a negligent condition in the first place.

At first glance, this does seem unfair to a plaintiff, because often that remedial measure is highly relevant to the unsafe condition that existed before.  However, this evidence rule was promulgated after a careful balancing of the policies that it imports.  The judiciary felt that if plaintiffs were allowed to engage in this type of argumentation, it would have a chilling or deterrent effect in fixing unsafe conditions.  At the very least, defendants would delay any remedial measures until after litigation was complete.  The authors of this rule felt that any such delay in fixing unsafe conditions was too large a price to pay and that plaintiffs would have to make their cases through other types of evidnce.  We do not question the propriety of that conclusion.

What we have noticed, though, is that defendants can actually use this rule in unintended ways.  For example, knowing that evidence of subsequent remedial measures is inadmissible, if a defendant were to “remedy” a certain condition as quickly as possible, then any physical evidence relating to that particular area would become inadmissible, or mostly inadmissible.  If the plaintiff did not already have adequate documentation, then her hands are tied, to an extent.

For example, in this Pupo case, a person was hurt in a grocery store from slipping on a watermelon display.  The grocery store put up pallet barriers around the display.  Now, this is not what actually happened, but imagine the plaintiff was hurt, and then wanted to go to the store a day or two later to take photos of the area where the injury occurred.  If the barriers were already erected, it would be very difficult to take any pictures that would be helpful to make the case.  Either the plaintiff would have to show pictures of a safe display with barriers to the jury, or no pictures at all.  Presumably, the plaintiff would not be allowed to show the display with barriers, but argue that the barriers were not there when the fall happened.

This is an interesting anomaly that the rule allows.  Maybe there is no other way to serve these policies.  However, in our job representing plaintiffs, we have learned that documenting the scene of an injury is critical, and moreover that such documentation must happen as soon as possible.  We always take steps to do that within reason.

(This post is intended to be educational and should not be construed as legal advice.  If you have questions or believe these issues affect you or your case, please contact an attorney.)

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