Chicago Personal Injury Law Blog

• In a premises liability case, the property owner may repair the hazardous condition of the property, or at least post warning signs about it;
• In a construction accident, the general contractor may correct the dangerous condition or hazardous work practice;
• In a nursing home setting, the responsible staff member may be fired or sent for retraining.

In an interview setting, I usually draw the same conclusion that the victim did: that there was a dangerous condition or practice which led to the injury and needed to be fixed or corrected. However, the law limits the use of this kind of evidence, technically referred to as subsequent remedial measures. As a matter of policy, courts want property owners and other entities to take measures to correct dangerous conditions and do not want the positive actions of the defendant (i.e., correcting dangerous practices or conditions) used as a club against them to show their liability. Therefore as a general rule, evidence concerning subsequent remedial measures is inadmissible to show that the defendant was negligent at the time of the injury.

The rule has its limitations built right in: the evidence cannot be used to show the negligence of the defendant. However, it can be used for other purposes, such as to show ownership or control. Evidence of subsequent remedial measures was admissible to show that a property owner owned a a stairwell where a client was injured. After suit was filed, the building owner disputed ownership, stating that the stairwell belonged to the operator of the parking garage at the base of the building. The actions of the building maintenance staff in putting up warning signs and caution tape was admissible to show that the building owned the stairwell in question. In another case the actions of a general contractor ordering a certain type of scaffold removed from the job site following a collapse and inspections of other scaffolds was admissible to the control of the general contractor over a job site at the time of a construction accident.

Finally, when the action is not taken voluntarily but at the insistence of a governmental agency, the rule does not apply at all. This is because the corrective action is not being taken to alleviate a hazard, but to comply with a governmental directive. This means that in a nursing home setting, actions taken as part of a plan of correction in a nursing home abuse and neglect case may be admissible in evidence.

Evidence that the defendant did something to correct a hazardous condition practice is powerful evidence of a defendant's negligence. The law limits its admission, and when it is admitted it is usually admitted with a limiting instruction to not consider as evidence of the defendant's negligence, which of course focuses the attention of the jury on how that evidence could be used for that purpose. Admission of this kind of evidence is often hotly contested and is frequently the focus of extensive pre-trial hearings.

Labels: construction accidents, Nursing home abuse and neglect, slip and fall accidents