“But They Fixed It” – A Primer on Subsequent Remedial Measures
When I meet with clients the first time to discuss a possible slip and fall accident suit, they are often quick to tell me that they have been by where they fell and saw that the property owner has fixed the defect which is responsible for their fall or have put up barriers or signs to protect or warn against the hazard.
Sometimes, they even have pictures of the fix to show me.
This is sure proof of the defendant’s fault in causing their injury. This could have been done before, and the property owner was negligent for not having done it sooner.
These are very reasonable inferences to draw and to some extent, they make a lot of sense. HOWEVER, the law does not always make sense, and the general rule is that fixes, changes, alterations, or repairs made after an accident, referred to in the law as “subsequent remedial measures,” are not admissible to show that the property owner was negligent at or before the time of the accident. That means that in most slip-and-fall cases, evidence that the property owner fixed the property or mitigated against the dangerous condition of the premises is inadmissible (not accepted as valid) at trial to show that the property owner was negligent.
The reasoning behind keeping subsequent remedial measures out of evidence is two-fold.
- They do not want to discourage property owners from fixing dangerous conditions that have caused an accident. If the evidence of the repair is allowed into evidence to show that the landowner was negligent in causing the fall, then no one would ever fix property that was dangerous.
- The fact that something was done to the property after the accident does not necessarily mean that the property owner was negligent before. It could just mean that they are being super-careful after.
That does not mean that a jury would never hear about a subsequent remedial measure; it just means that evidence of subsequent remedial measures cannot be offered to show that the property owner was negligent before. This means that evidence of subsequent remedial measures can be used for other purposes, such as to show control over the property or that a repair was feasible. Of course a defendant has to deny those things to make that evidence admissible.
Here are some examples of how we have gotten subsequent remedial measures into evidence:
- In a fall in a mall parking lot, one of the stores claimed that they had no responsibility for safety in the parking lot, even though they picked up and threw away the object our client slipped on. That action was admissible to show that they assumed control over the parking lot.
- In a fall in an office building, the defendants denied that they were responsible for a stairway where the client fell. However, after the accident, they put up warning signs and removed the hazard that caused the client’s injuries. Evidence of this conduct was admitted to show that they had ownership and control over the stairway.
Evidence of subsequent remedial measures can be convincing evidence of a defendant’s negligence in a slip-and-fall case.
That is part of the reason that it is excluded from evidence. However, as experienced Chicago personal injury lawyers, we recognize that this evidence has great power, even when it is not used to directly show that the defendant was negligent in causing the accident. As your lawyers, we will seek to admit this kind of evidence as aggressively, yet ethically as possible.