Pensacola Inn Ltd. v. Tuthill

• Decision Date: 22 October 1981
• Docket Number: No. AB-459,AB-459
• Parties: PENSACOLA INN LIMITED, Fanning Realty, Inc., and Clifford E. Fanning, Appellants, v. Robert H. TUTHILL, Appellee.
• Court: Florida District Court of Appeals

Page 1173

404 So.2d 1173

PENSACOLA INN LIMITED, Fanning Realty, Inc., and Clifford E. Fanning, Appellants, v. Robert H. TUTHILL, Appellee.

No. AB-459.

District Court of Appeal of Florida, First District.

Oct. 22, 1981.

Rehearing Denied Nov. 13, 1981.

Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.

Wilmer H. Mitchell, Pensacola, for appellee.

PER CURIAM.

Appellants seek reversal of a final judgment awarding damages to appellee, appellants' motel guest, for injuries sustained when he fell on the motel premises. We conclude that a jury issue was presented as to whether appellants were negligent in failing to maintain the premises in a reasonably safe condition, and whether the condition complained of was the legal cause of appellee's injuries. However, we determine that it was reversible error to allow appellee to introduce photographs of the accident scene showing material alterations and improvements made by appellants after the accident. We therefore reverse.

On the morning of the accident, appellee left his ground floor motel room, turned to his right, and walked along a concrete walkway abutting the motel rooms. He passed a stairwell which obstructed his view of the parking lot to his left, then turned to the left, stepped off the walkway and immediately fell when his left foot slipped on the ground surface which was composed of clay a few inches below the walkway level and sloping at an angle of twenty-five to thirty degrees toward the parking lot pavement. He observed that this compacted clay surface was somewhat moist, as from the morning dew. It was conceded at trial that at the time of the accident he was attempting to traverse an area intended for the use of motel guests.

Appellee introduced, over objection, seven composite exhibits consisting of three photographs each, making a total of twenty-one photographs of the accident scene. These photographs almost without exception concentrate on the exact point where appellee stepped off the walkway, slipped and fell, and show with great clarity improvements made by appellants some four or five days following the accident, consisting of removal of the sloping clay or dirt fill abutting the walkway, replacing this with grassy sod, and the placing of round concrete stepping stones at the exact point where appellee stepped off the walkway.

The general rule, with some exceptions, as stated in City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964), cert. den. 166 So.2d 150, is that evidence of a change in conditions or proof of repairs made after an injury is never admissible as proof of the defendant's negligence in not having made the repairs or taken precautions prior to the accident. In that case a new trial was ordered because the court allowed testimony concerning post-accident changes in the meter box over which plaintiff tripped.

The rule is found in the Florida Evidence Code, Section 90.407:

Subsequent remedial measures. Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event.

Appellee concedes the above rule but seeks to avoid its application here by contending that evidence of subsequent repairs or improvements is nevertheless admissible if submitted not for the purpose of showing negligence by the fact of changes, but to show feasibility of...