Jury Trial-Pretrial Evidentiary Issues, Pt. 1

(Note: This is one part of a multi-part series of posts about a case I tried in June. It starts below.)

One of the big issues to be resolved before the trial was the issue of "subsequent remedial measures." This is an evidentiary issue stemming from Rule 407 of the Montana Rules of Evidence. The Rule provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

The Rule was pertinent in our case because at some point after our client's accident, Albertson's did start doing the daily safety checks. There was another incident in Bozeman, Montana, where someone was hurt by an Albertson's door, and as a condition of that settlement, Albertson's agreed to do the daily safety checks.

The Rule provides for the exclusion of evidence of subsequent remedial measures. If you think about it as a matter of policy, this makes complete sense. If there is a dangerous condition in the world, the owner of that instrumentality should be encouraged to make it safe. If evidence of his correcting the problem can be used against him, though, he will be less likely to fix the problem rather than encouraged to do so. Thus, you cannot use his repair of the problem to show he was at fault for allowing the problem to exist in the first place. So far so good, right?

Well, in this case, Albertson's officials testified that it simply would not be feasible to perform daily safety checks on all of their doors all across the country. Further, given the sheer number of times a day people went through the doors without incident, the 'cost' of doing the checks clearly outweighed the potential value in safety to the customers.

We, of course, wanted the jury to hear the evidence. It would be, we thought, unseemly for Albertson's to argue that the daily safety checks were completely unnecessary when, in fact, they have been doing them for a year or more.

We won the issue with the Judge, primarily due to the fact that my partner did a good job in a deposition getting an Albertson's representative to say that it would not be feasible to do the safety checks. Hard to argue with that, given the language of the Rule. We would be able to show the jury that Albertson's is now doing precisely what we argued they should have been doing at the time of the injury.