Holland v. First Nat. Bank of Brewton

• Decision Date: 18 December 1987
• Citation: 519 So.2d 460
• Parties: Jessie HOLLAND and Marvin Holland v. FIRST NATIONAL BANK OF BREWTON. 85-1463.
• Court: Alabama Supreme Court

Page 460

519 So.2d 460

Jessie HOLLAND and Marvin Holland v. FIRST NATIONAL BANK OF BREWTON.

85-1463.

Supreme Court of Alabama.

Dec. 18, 1987.

William D. Melton, Evergreen and Windell C. Owens, Monroeville, for appellants.

Stephen E. Clements of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.

BEATTY, Justice.

This is an appeal by the plaintiffs, Jessie Holland and Marvin Holland, from the trial court's denial of their motion for a new trial following a jury verdict, and judgment thereon, in favor of the defendant, First National Bank of Brewton ("Bank"), in plaintiffs' action for personal injuries and loss of consortium. We affirm.

On November 16, 1984, Jessie Holland rode in an automobile with a friend, Barbara Pugh, to a branch of the Bank they each had business to conduct. Mrs. Pugh parked her automobile in a parking space directly in front of the Bank's front door. The front end of Mrs. Pugh's automobile extended over approximately one-half the width of the sidewalk leading to the Bank's front door. The two women entered the Bank, completed their business, and exited the Bank, returning to Mrs. Pugh's automobile. As they approached the automobile, Mrs. Holland had to step across the edge of a flower bed adjacent to the sidewalk, because the automobile blocked too much of the sidewalk to allow easy passage. In that process, Mrs. Holland sustained a fall, hitting the concrete with her face, body, and legs, suffering severe injuries as a result.

Following her fall, Mrs. Holland and her friend looked around to see what had caused Mrs. Holland to fall. They saw a "pipe" located next to the sidewalk, two to four inches above the level of the sidewalk. This "pipe" was a flagpole holder placed in the flower bed by the Civitan Club with the Bank's permission.

Plaintiffs filed this negligence action against the Bank, seeking compensatory damages for Mrs. Holland's injuries and Mr. Holland's loss of Mrs. Holland's consortium. On the day of trial, the Bank filed a motion in limine, asking the court "to instruct, direct and order each of the plaintiffs, their witnesses and their attorneys, not to mention, refer to, interrogate concerning, argue or mention in any way, either directly or indirectly, during the course of the trial, the fact that the defendant has [since the accident] relocated the American flag holder which is the subject of this litigation ... without first securing the prior permission of this court removed from the hearing of the jury." (Emphasis added.)

The trial court granted the Bank's motion in limine, over plaintiffs' objection. Thereafter, on two occasions during the trial of the case, the plaintiffs attempted to go into, directly or indirectly, the fact that the Bank had relocated the flagpole holder after the occurrence. Plaintiffs were not, however, successful in their attempts. The jury returned a verdict for the Bank, and the trial court denied plaintiffs' motion for new trial. This appeal followed.

The only issue raised by the plaintiffs is stated as follows in their brief:

"Whether the trial judge committed reversible error by granting the motion in limine of the defendant excluding evidence of movement of the flagpole holder when the evidence was needed to impeach the testimony of witnesses and to show control over the flagpole holder by the defendant."

Plaintiffs conclude their argument on this issue as follows:

"By granting the defendant's motion in limine, the trial court denied Mr. and Mrs. Holland the opportunity to present probative evidence that would support their case as to the position of the flagpole holder. The plaintiffs strongly contend that this constituted reversible error on the trial judge's part and that the only remedy to that error is to reverse the trial judge's rulings on this motion and remand this case back for a retrial."

No other issues, errors, or grounds for reversal are raised by the plaintiffs.

Plaintiffs concede the general rule that subsequent remedial measures taken by a defendant are inadmissible "as tending to show the defendant's antecedent negligence." Hyde v. Wages, 454 So.2d 926 (Ala.1984). Plaintiffs, nevertheless, argue that such evidence in this case was due to be admitted under three of the "exceptions" to the general rule, which this Court recognized in Banner Welders, Inc. v. Knighton, 425 So.2d 441, 444-45 (Ala.1982):

"Generally, evidence of subsequent repairs is not admissible to establish negligence, although it may be admissible to show identity of ownership, to show control of the locus, to contradict or impeach a witness, or to lessen the weight of an expert opinion. Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941). Another permissible use may occur where such evidence is offered to establish a condition existing at the time of the accident. Leeth v. Roberts, 295 Ala. 27, 322 So.2d 679 (1975)."

Plaintiffs contend that they should have been permitted to adduce evidence establishing that the Bank moved the flagpole holder subsequent to Mrs. Holland's injury in order to show that the Bank had control over the placement of the flagpole; to show that the scene was different than as depicted in photographs introduced by the Bank for the purpose of establishing the condition of the flagpole holder; and to impeach the testimony of the Bank's witnesses to the effect that the Bank's photographs accurately depicted the condition of the area as it was on the day of the accident.

The admissibility of evidence of subsequent remedial measures offered for these "other purposes" depends on three factors: (1) whether the "other purposes" are material, that is, at issue in the case; (2) whether they are relevant to the issue, that is, whether the evidence tends to prove the purpose for which it is offered; and (3) whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See generally, Gamble and Windle, Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L.Rev. 547 (1986). The burden is on the party seeking to admit evidence of subsequent remedial measures to establish materiality, relevancy, and probative value in excess of prejudicial effect.

In Ex parte Houston County, 435 So.2d 1268, 1271 (Ala.1983), this Court explained the distinction between an absolute order granting a motion in limine and a preliminary order granting a motion in limine:

"In some cases an order granting a motion in limine is not absolute, but only preliminary, and the non-moving party may offer the disputed evidence at trial and, if the other party objects and the court sustains the objection, the party offering the evidence may appeal from this ruling. See C. Gamble, The Motion in Limine: A Pre-Trial Procedure That Has Come of Age, 33 Ala.L.Rev. 1], at 16. The order entered below appears to be of the preliminary sort allowing offers at trial, because it ends with the words 'without further order of this Court.' "

The motion granted in the present case was preliminary, because it ends with the words "without first securing the prior permission of this court removed from the hearing of the jury." Although at trial the plaintiffs attempted on two occasions to go into the matter of the Bank's subsequent remedial measure, in only one instance did they seek to do so on the ground that the matter was material and probative on the issue of control. On that occasion, the Bank objected to the plaintiffs' offer of proof, and the trial judge stated that he was "not going to let [plaintiffs] get into" the matter of the Bank's subsequent relocation of the flagpole holder because, based on the testimony, he did not "think ... the defendant ha[d] taken the position [that it] was not in control of the premises." The testimony supports this conclusion by the trial court, and even if we were to determine that plaintiffs have properly raised as error on appeal this ruling by the trial court (see the issue as quoted from plaintiffs' brief, supra ), we could not say that the trial court abused its discretion in not allowing the plaintiffs to establish the Bank's relocation of the flagpole for the purpose of showing control. While control was an issue under the plaintiffs' theory of liability, nevertheless, the record supports the trial court's determination that there was simply no evidentiary dispute, on the issue of control; the Bank clearly admitted...