Emerson v. Garvin Grp., LLC

• Decision Date: 23 April 2013
• Docket Number: No. ED 98536.,ED 98536.
• Citation: 399 S.W.3d 42
• Parties: June EMERSON, Appellant, v. The GARVIN GROUP, LLC, Respondent.
• Court: Missouri Court of Appeals

399 S.W.3d 42

June EMERSON, Appellant,

v.The GARVIN GROUP, LLC, Respondent.

No. ED 98536.

Missouri Court of Appeals,

Eastern District,

Division One.

April 23, 2013.

Gary A. Growe, Teneil L. Kellerman, Saint Louis, MO, for Appellant.

Amy M. Surber, Maryland Heights, MO, for Respondent.

OPINION

GLENN A. NORTON, J.

June Emerson appeals the judgment entered upon the jury verdict finding The Garvin Group, LLC (“Garvin”) twenty percent liable in Emerson's negligence action and assessing total damages at $15,000. This appeal raises the issue of first impression of whether evidence of subsequent remedial measures taken by a non-party is admissible in a negligence action. We reverse and remand.

I. BACKGROUND

Emerson performed electrical assembly work at Raven Industries (“Raven”), an electronics manufacturing plant. In order to keep plant floors compliant with static control issues, Raven contracted with Garvin to strip, wax, and buffer designated areas of the plant floor. On the night at issue, Garvin began the process of treating a designated area of the plant floor near the area where Emerson was stationed. Emerson left her work station to get additional parts and fell on the portion of the floor being treated by Garvin. Garvin had not marked the area with warning signs, cones, or tape.¹ Emerson sustained injuries to her wrist as a result of the fall and filed the underlying negligence action against Garvin.

The cause proceeded to trial where Emerson sought to introduce evidence that, subsequent to her fall, Raven directed Garvin to begin marking the designated areas of the floor to be treated with cautionsigns or tape. The trial court excluded the evidence as a subsequent remedial measure, and the jury returned a verdict finding the total amount of Emerson's damages to be $15,000 and assessing the percentage of fault at twenty percent to Garvin and eighty percent to Emerson. The trial court entered judgment on the verdict in favor of Emerson in the amount of $3,000. Emerson appeals.

II. DISCUSSION

A. Subsequent Remedial Measure Directed by Raven

In Emerson's first point on appeal, she claims the trial court erred in excluding evidence that, subsequent to her accident, Raven directed Garvin to mark the designated areas of the floor being treated with caution signs or tape. We agree.

A trial court's ruling on the admission or exclusion of evidence is reviewed for an abuse of discretion. Teasdale & Associates v. Richmond Heights Church of God in Christ, 373 S.W.3d 17, 21 (Mo.App. E.D.2012). However, the issue of whether the trial court applied the correct legal standard is a question of law that we review de novo. Kesler–Ferguson v. Hy–Vee, Inc., 271 S.W.3d 556, 558 (Mo. banc 2008).²

Generally, evidence of subsequent remedial measures is inadmissible in negligence actions to prove negligence or culpable conduct in connection with the event. Rader Family Ltd. Partnership, L.L.L.P. v. City of Columbia, 307 S.W.3d 243, 247–48 (Mo.App. W.D.2010). However, the rule does not require the evidence to be excluded when it is used for other purposes such as impeachment or, if controverted, as proof of ownership, control, or feasibility of precautionary measures. Id. at 248. The principal reason for the prohibition lies in the public policy favoring safety improvements and the fear that if safety improvements could be used as evidence of previous improper conditions, no one, after an accident, would make improvements. Cupp v. National R.R. Passenger Corp., 138 S.W.3d 766, 776 (Mo.App. E.D.2004). Emerson acknowledges the general prohibition on the admission of subsequent remedial measures, but argues that the public policy behind the rule is not implicated where the evidence concerns remedial measures taken by a non-party to the case. Because evidence of remedial measures taken by a non-party cannot expose that party to liability, Emerson argues that the non-party will not be deterred from implementing the remedial measure, and therefore the prohibition should be limited to the exclusion of evidence relating to remedial measures taken by the defendant. Emerson's argument raises an issue of first impression in Missouri.

Federal Courts have agreed with Emerson's position when interpreting an analogous evidentiary rule, Federal Rule of Evidence 407.³ Each United States Federal Circuit Court of Appeals to address this issue has concluded that Rule 407 does not apply to subsequent remedial measures taken by a non-party.⁴ In Dielh, the Third Circuit Court of Appeals, after explaining that Rule 407⁵ rests on the public policy of wanting to encourage improvements to safety, recognized that the “policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit.” 360 F.3d at 429–30. “The admission of remedial measures by a non-party necessarily will not expose that non-party to liability, and therefore will not discourage the non-party from taking the remedial measures in the first place.” Id. at 430. Accordingly, the Court held that Rule 407 does not apply to evidence of subsequent remedial measures taken by a non-party. Id.

“While the Federal Rules of Evidence are not binding on Missouri courts, they are suggestive.” Boyer v. City of Potosi, 77 S.W.3d 62, 69 (Mo.App. E.D.2002). Missouri Courts, similar to the Court in Diehl, have focused on the public policy implications when analyzing whether the rule relating to subsequent remedial measures should apply to particular instances. It has been stated that “[b]ecause public policy favors remedial measures, evidence that, after an accident has occurred, a defendant took precautions to prevent a reoccurrence of the accident, or made changes or repairs in the property or place causing the accident, is not competent evidence to be used against the defendant to show antecedent negligence or an admission of negligence.” Cupp, 138 S.W.3d at 776 (emphasis added).

In Pollard, this Court decided, for the first time, whether the rule regarding the admissibility of subsequent remedial measures applies to strict liability cases in Missouri. 793 S.W.2d at 401. Focusing on the public policy behind the rule, the Court noted that “[i]t is manifestly unrealistic to suggest that the producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effects upon its public image, simply because evidence of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement.” Id. at 402 (internal quotation omitted).⁶Accordingly, the Court determined that the public policy rationale does not apply in strict liability cases and held the evidence was admissible. Id. 402–03.

In Rader Family, the Western District Court of Appeals was faced with the issue of whether the rule regarding the admissibility of subsequent remedial measures should apply to inverse condemnation or nuisance cases. 307 S.W.3d at 248. The Court repeated the public policy behind the rule and found that it applied, perhaps even more so than in negligence actions, stating, “[i]f plaintiffs were allowed to introduce evidence of subsequent remedial measures to prove a prior nuisance by an entity with the power of eminent domain, this could deter these entities from implementing preventative measures protecting the public.” Id. Consequently, the Court held that the trial court did not err in applying the rule against the admission of subsequent remedial measures. Id.

In Boggs ex rel. Boggs v. Lay, this Court explained that the “public-policy rationale for excluding evidence of post-accident remedial measures does not apply ... if the measures in question were planned, provided for, or undertaken prior to the accident.” 164 S.W.3d 4, 21 (Mo.App. E.D.2005). Therefore, the Court determined that a defendant who is aware of a problem and has proposed remedial measures prior to an accident is not entitled to the protection of the exclusionary rule, and it was not error to admit evidence regarding remedial measures proposed and implemented prior to the plaintiff's injury. Id. at 22.

The analysis in Pollard,Rader Family, and Boggs focused on whether the public policy rationale applied when considering whether the exclusionary rule relating to subsequent remedial measures was applicable. Consistent with this approach, we follow Diehl and hold that the exclusionary rule barring evidence of subsequent remedial measures does not apply when the measure was implemented by a non-party.⁷ Because evidence of remedial measures taken by a non-party necessarily will not expose that party to liability, that party will not be discouraged from taking the remedial measure and the public policy in favor of safety improvements will be satisfied.⁸

Here, the trial court excluded evidence that, following Emerson's injury, Raven, a nonparty to the action, implemented a policy requiring the use of caution signs or tape to mark off the designated area of the plant floor being treated. Because this remedial measure was implemented by a non-party, the rule prohibiting evidence of subsequent remedial measures does not apply, and the trial court abused its discretion in excluding the evidence.⁹ Point one is granted.

B. Additur

In Emerson's second point on appeal, she argues that the trial court erred in denying her motion for additur. Emerson contends that the verdict assessing her total damages at $15,000 was against the weight of the evidence and shockingly inadequate where the undisputed evidence showed that she sustained at least $41,198.44 in medical bills and $3,900 in lost wages.

Our disposition of Emerson's first point on appeal requires remanding the cause for a new trial where the jury can consider additional evidence relevant to the determination of fault. “[I]n a comparative fault case, the issues of fault and damages are blended and interwoven, and it would be a rare...