Hello Richard:
At the federal level in the US,
Rule 407 of the Rules of Evidence provides as follows:
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- negligence;
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary
measures.
The link that I’ve provided has a good commentary both on the policy rationales for the rule and the limitations or exceptions to it. The commentary
mentions a case in which the evidence was admitted, not to prove negligence, but to show that the portion of a road was under defendant's control. Perhaps that is similar to the scenario you’re citing. I haven’t looked that the Massachusetts version of the
rule, but my understanding is that every state has a similar evidentiary rule—though differences of interpretation are likely to abound.
John Kleefeld
Associate Professor, College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon SK S7N 5A6
tel: (+1) 306.966.1039
email: john.kleefeld@usask.ca
skype: johnkleefeld
twitter: @johnkleefeld
Read my most recent article, co-authored with former student Kate Rattray, on editing Wikipedia for law school credit:
http://ssrn.com/abstract=2729241.
Also, just published—“Concurrent Fault at 90,” my book chapter in Quill & Friel’s
Damages and Compensation Culture: http://www.bloomsbury.com/au/damages-and-compensation-culture-9781849467971.
And a recent blog post on Slaw:
http://www.slaw.ca/2016/11/09/standard-of-review-the-great-passion-of-canadian-law.
From:
Richard Peltz-Steele <rpeltzsteele@umassd.edu>
Date: Friday, November 18, 2016 at 12:07 PM
To: obligations <obligations@uwo.ca>
Subject: Mass. App. on landowner duty for adjacent sidewalk
ODGers and aficionados of common law duty doctrine:
A Massachusetts Appeals Court decision published today, Halbach v. Normandy Real Estate Partners (PDF), offers a straightforward analysis of common law landowner
duty (and lack thereof) with respect to passersby on a public sidewalk adjacent to a commercial property.
The plaintiff fell and suffered injury as a result of unevenness on what was not disputed to be a Boston city-owned and -maintained sidewalk. The defendant spent $800 to grind down the unevenness after the incident. The court agreed with the plaintiff that
exercise of control over property may create landowner duty despite lack of ownership, but found no such control here, and no common law duty over a right-of-way merely because of its adjacency. Duty would have arisen in the ordinary sense if the property
owner affirmatively had created some dangerous condition on the public right of way. Summary judgment for the defendant was affirmed.
Concurring, Justice Milkey wrote separately to opine that the plaintiff's case was stronger than the majority let on, even if the judge agreed with the conclusion. Justice Milkey observed that the record contained testimony from an employee of the defendant
acknowledging responsibility for the sidewalk as a matter of good business. The judge worried that injured plaintiffs will be left without remedies against real estate owners who in fact assume responsibility for the injurious conditions. But he offered
no distinguishing principle going forward.
The plaintiff argued that the defendant's remedial action demonstrated control, and therefore responsibility for the dangerous condition. Judge Milkey acknowledged the defendants' "laudable" repair as "strong evidence." To my mind, such a conclusion makes
problematic policy; I would think the evidence of at least this remedial action should be excluded. Am I wrong about that?
rick
Richard J. Peltz-Steele
Professor, UMass Law School
http://ssrn.com/author=625107
The Savory Tort
@RJPeltzSteele
+1 508-985-1102