Should You Implement Subsequent Remedial Measures Following an Accident
A common question which arises following an injury on a landowner’s property is whether the landowner should engage in measures to remediate the condition which allegedly caused the injury. Landowners can be hesitant to undertake such measures for fear that their actions will be utilized by attorneys for the injured party as proof that the condition was dangerous or defective.
Premises Liability for Landowners
In order not to discourage landowners from engaging in “subsequent remedial measures,” from a public policy point of view, a principle has been established within the rules of evidence which precludes a plaintiff from entering proof of such remedial measures as proof of the landowner’s negligence.
As with any general rule, exceptions exist which allow such evidence to be admitted at trial, thereby presenting potentially prejudicial inferences and conclusions to be made by the trier of fact.
The basic exceptions to the general rule prohibiting evidence of subsequent remedial measures include (1) as evidence of “ownership or control;” and, (2) to show “feasibility if controverted.” The first exception comes into play when the defendant landowner asserts that he/she did not own nor control the property or instrumentality containing the dangerous condition. In such a case, evidence of the landowner’s post-accident action to eliminate the dangerous condition is evidence of ownership of control of the property or instrumentality. The second exception, “feasibility, if controverted,” allows evidence of post-accident repairs to be admitted where a defendant argues that the existence of the condition was not negligent because the implementation of the remedial measure was neither feasible nor necessary.
Despite the fact that evidence admitted under these exceptions is not to be considered by the trier of act as direct evidence of negligence, the prejudicial effect of this evidence can be difficult to overcome.
Vermont Premise Liability Lawyer
Of course, the elimination of a dangerous condition on one’s land should always be a major consideration when determining whether to undertake post-accident remedial measures, despite the potential negative impact such a decision may have in subsequent litigation. If the accident exposes a condition for which a remedial measure is warranted, you should always err on the side of implementing the measure, which might avoid a subsequent accident. Failing to take remedial measures upon notice of a dangerous condition will also likely increase the liability exposure in a subsequent accident involving the same condition. Juries tend to have little sympathy for defendants who have knowingly failed to remediate a dangerous condition causing injury on their land.
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If, however, all reasonable precautions to avoid an accident were already taken before the incident, then it may be that no remedial measures need be implemented.
For further advice on your specific needs, contact one of our attorneys for a consultation, 802-775-8800.