Page 4 - Litigation

S4 | MONDAY, MAY 5, 2014 | Litigation | NYLJ.COM

Practical Considerations for Dealing

With Subsequent Remedial Measures

plinary action taken against defendant is not
BY STEVEN F. NAPOLITANO permitted to aid plaintiff in demonstrating
AND BRITTANY M. DORMAN
that defendant engaged in excessive force.”
WId. at *5.
hen David Bowie sang about “Chang-
es” more than 40 years ago, he most Recognized Exceptions
certainly was not referring to mea-
sures by a defendant after an injury that Though defendants should have a rela-

“would have made an earlier injury or harm tively straightforward path for excluding
less likely to occur.” See Fed. R. Evid. 407. It evidence of post-accident changes or repairs
is, of course, black letter law under Federal whose sole purpose is to suggest negligence
Rule of Evidence 407 and New York’s com- or fault, there are a variety of exceptions to
mon law that evidence of remedial changes that general rule at the disposal of plaintiffs
(or “ch-ch-ch-changes,” to quote Mr. Bowie) attempting to introduce such evidence. How-
after an injury are inadmissible to prove the ever, careful pleading and discovery on key
defendant’s negligence, culpable conduct, or issues will be necessary if a plaintiff wants
other fault. However, evidence of subsequent to lay the groundwork to avail itself of one of

remedial measures may be admissible if the exceptions. Moreover, a defendant may
offered for another purpose, including “prov- need to decide early on in a case whether
ing ownership, control, or the feasibility of to concede certain issues, lest a dispute be
precautionary measures,” if disputed. See id.; created allowing the evidence in.
Stolowski v. 234 East 178th Street, 89 A.D.3d For example, evidence of subsequent OCK
549 (1st Dept. 2011).
repairs is admissible to establish the GST
Though subsequent remedial measures are defendant’s ownership or control over the BI
most commonly associated with product liabil- instrumentality of the original accident. In
ity litigation, New York courts apply this the recent case of Ginsburg v. City of Ithaca,

doctrine in other types of litigation as well, 5:11-CV-1374, 2014 WL 1152806 (N.D.N.Y.
often in creative ways. Thus, plaintiff and March 24, 2014), the parent of a Cornell
defense counsel must keep informed
student who committed suicide by jump-
of developing case law in this area, ing from a bridge brought a wrongful
and give advance thought as to death action against both the city
how such potentially powerful and Cornell University. Though the
evidence could get before the Thurston Avenue Bridge at issue
jury in a particular case.
was technically owned by the city,

Cornell owned the property on
Basic Application
either side of it and the bridge
was traveled heavily by Uni-
Courts consistently
versity students. Following
exclude evidence of
a series of similar suicides,
subsequent reme-
Cornell, with the permis-
dial measures where
sion of the city, installed
offered as evidence of
chain-link fences (which
negligence, or other fault.
were eventually replaced by

The logic behind this rule, of
permanent netting) at their own
course, is that a defendant’s corrective action 2013), the plaintiff was bitten by a dog owned son v. Troyan, CV 07-4846 ETB, 2011 WL expense to prevent further suicide attempts.
after the fact of an accident or other injury by the defendant, and sued both the dog’s 5416324 (E.D.N.Y. Nov. 8, 2011), the district Cornell University moved for summary judg-
causing event does not establish that it was owner as well as the owner and manager of court creatively invoked Rule 407 in exclud- ment on plaintiff’s negligence claim, arguing
negligent for not making this change earlier, the residential building where the dog-bite ing evidence of disciplinary action taken that they “lacked ownership or control” of
or that a product sold before a change was occurred. On the defendants’ motion for against a policeman after he was accused the bridge at issue and therefore could not
defective as sold. Furthermore, society does summary judgment, the plaintiff attempted of using excessive force against the plaintiff, be held liable. Id. at *3. However, the court
not want to deter actors from trying to make to introduce evidence that the owner had the a pretrial detainee. The defendant made a held that the issue of whether the University
their products safer and from taking other dog put to sleep after the incident as evidence motion in limine to exclude testimony of the exercised suficient control over the bridge

remedial steps that might make injuries less of the dog’s “vicious tendencies.” The court chief of police that the defendant had been to impose premises liability was a question
likely to occur. Accordingly, New York courts excluded such evidence, however, holding suspended from police duty without pay for for the jury. Id. at *5. The court noted that,
will ind such evidence inadmissible if offered that it did not raise a triable issue of fact, and eight months following the incident, and, after though evidence of the subsequent repairs
to prove negligence, strict liability, or other that “whatever the reason for his decision being reinstated, was prohibited from car- and preventative measures taken after the
fault. The scope of cases where this doctrine to [put the dog to sleep], such evidence of rying a weapon or resuming any courtroom suicides would be inadmissible to prove that
can arise is broad. For example, in Flemmig subsequent remedial measures is not admis- duty. Though the court also excluded the Cornell was negligent, such evidence would
v. Kwak, 2013 N.Y. Misc. LEXIS 4812, 2013 sible to demonstrate liability.” Id. at *14. The evidence as being unduly prejudicial and be admissible to show that Cornell exercised
NY Slip Op. 32592(U) (N.Y. Sup. Ct. Oct. 9,
court granted defendants’ motion for sum- inadmissible under the self-critical analysis control over the design, construction, and

mary judgment, holding that plaintiff failed privilege, the court stated that, “[a]s with a maintenance of the bridge. Id. at *5, n.13.
to produce suficient admissible evidence to situation in which someone is injured due to In addition to establishing ownership or
STEVEN F. NAPOLITANO is a partner and BRITTANY establish a triable issue of fact as to whether a faulty condition and evidence of subsequent control, evidence of subsequent remedial
M. DORMAN is an associate at Skadden, Arps, Slate, either defendant knew or should have known remedial measures taken by the defendant measures is similarly admissible to establish
Meagher & Flom, where both practice in the mass of the dog’s vicious propensities. Id. at *15-16.
are not considered admissible to prove fault, feasibility of precautionary measures—i.e.,
torts, insurance and consumer litigation department.
Likewise, in the federal case of Robin-
[the chief’s] testimony concerning the disci-
that such preventative measures » Page S14