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It May Be After the Fact, But…

A common theme in representing victims of accidents, especially those injuries that occur on premises, is that the landowner or other entity in control of the property may change the conditions that gave rise to the accident after it occurred. Certainly, then, it is imperative for the lawyer to video or photograph the scene as soon as he/she has been retained. What about introducing in evidence—or using to influence a settlement—a subsequent remedial repair? In this context, the subsequent repair is obviously referring to the repair that takes places post-accident. That repair attempts to improve the safety of the premises. Isn’t that relevant to show negligence? As usual, the law has a nuanced response to that question, for it may be relevant, but allowing that evidence to be presented may inhibit future repairs because of the legal implications. Consequently, the rule against the admission of subsequent remedial repairs, in effect in almost all jurisdictions, has developed to exclude the admission of such evidence. The rule has developed to further the public policy in allowing for repairs, i.e. improved safety.

But, as I say, the rule is nuanced. Although the general rule is that post-accident improvements are not admissible to show negligence, there are exceptions if the evidence is offered to show feasibility, control, or is used for impeachment. As the Supreme Judicial Court of Massachusetts has observed, improved safety design does not become inadmissible merely because a defendant chose to concede in a general way that design improvements were practical. do Canto v. Ametek, 367 Mass. 774 (1974) Thus, despite what you may think, the additional light, the strengthened hand rail, the changed composition of the floor may all aid in the resolution of your case.

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