“They Fixed it Right After I Fell:” Subsequent Remedial Measures in Premises Liability Cases

As a personal injury attorney, I represent many people who have been injured by dangerous conditions on public property. These ‘slip and fall’ cases occur with some regularity in places like grocery stores, apartment complexes and even at amusement parks. Most people who are injured in ‘slip and fall’ accidents are quick to point out that the owner or manager of the establishment immediately fixed the dangerous condition, whether it be by securing a loose tile on the floor or re-cementing an unstable railing on a steep staircase. Common sense dictates that if the area was repaired after the incident, the “subsequent remedial measure” (the legal term for repair), should be evidence that the area was dangerous to begin with. After all, things that aren’t broken don’t need to be fixed!

Unfortunately, under the Rules of Evidence in Virginia, subsequent remedial measures – repairs – are generally not admissible to prove the existence of a dangerous condition. Why is that?

As a general rule, any evidence that is relevant is admissible.[1] Relevant evidence is defined as evidence “having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence.”[2]  On first glance, it seems that if a landowner fixes a condition, it makes it more probable that they viewed the prior condition to be dangerous and in need of repair.

Unfortunately, under Rule 2:407 of the Virginia Rules of Evidence, subsequent remedial measures, while potentially relevant, are still not admissible.  Rule 2:407 reads:

“When, after the occurrence of an event, measures are taken which, if taken prior to the event, would have made the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct as a cause of the occurrence of the event…”

This exclusionary rule is based on public policy. If subsequent remedial measures, like the repairs discussed above, were admissible to prove liability in court, a property owner would be hesitant to fix the problem. In areas frequented by the public, this could result in many more injuries. The rule preventing the admission of subsequent remedial measures is designed to ensure that property owners will do the right thing and make the premises safer for everyone immediately without having to worry about their repairs being used against them in court.

Does that mean we should forget about subsequent remedial measures entirely? Of course not! There are exceptions to this exception.  If a property owner denies they own the property in question, claims they have no way of fixing the defect or dangerous condition or if they allege that a repair would be cost prohibitive, an injured plaintiff may offer evidence of the subsequent remedial repairs for the purposes of proving ownership, control, or the feasibility of repair. While subsequent remedial measures don’t prove the case or guarantee recovery, they can still make all the difference at trial.

The attorneys of Allen and Allen have years of experience handling premises liability cases. If you or someone you know has been injured by a dangerous condition or after a slip and fall, call us for a free consultation.

About The Author: Kathleen is an attorney with the Allen Law Firm whose practice is focused specifically on personal injury cases. She has a wealth of courtroom experience which provides her with a competitive advantage when representing her clients. In addition to defending the rights of people who have been victims of someone else’s negligence, Kathleen also serves as an adjunct professor at Strayer University.

[1] See: VA Rules of Evidence 2:402 .

[2] See: VA Rules of Evidence 2:401.