Phar-Mor, Inc. v. Goff

• Decision Date: 14 February 1992
• Docket Number: PHAR-MO,INC
• Citation: 594 So.2d 1213
• Parties: v. Edna GOFF and Dan Goff. 1900979.
• Court: Alabama Supreme Court

Page 1213

594 So.2d 1213

PHAR-MOR, INC. v. Edna GOFF and Dan Goff.

1900979.

Supreme Court of Alabama.

Feb. 14, 1992.

Davis Carr of Pierce, Carr & Alford, Mobile, for appellant.

Andrew T. Citrin and Robert T. Cunningham, Jr. of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellees.

INGRAM, Justice.

Phar-Mor, Inc., the defendant in this negligence action, appeals, contending that the trial court erred in admitting photographs taken at the time of the trial that Phar-Mor says showed subsequent remedial measures.

This action arose out of an accident that occurred at a Mobile Phar-Mor store. Mrs. Edna Goff allegedly fell when her foot was caught under a display basket in the store. She alleges that Phar-Mor negligently or wantonly maintained the aisles of the store in an unreasonably dangerous condition, negligently or wantonly failed to maintain the aisles in a reasonably safe condition, negligently or wantonly placed displays and/or other objects in the aisles of the store that she and other business invitees of the defendant would reasonably be expected to traverse, and negligently or wantonly failed to warn her of dangerous conditions existing in the aisles of the store. She alleges that the negligence or wantonness of Phar-Mor, Inc., was the proximate cause of her injuries. Her husband, Dan Goff, joined the action, claiming loss of Mrs. Goff's services and consortium.

The Goffs allege that Mrs. Goff fell because of an unsafe condition in the store, namely, a display basket set up to show certain merchandise. The Goffs allege that the basket was set up so that protruding wire prongs located on the bottom (in the toe space) could "snag" a person's foot. Phar-Mor contends that the basket was set up according to the manufacturer's instructions and that it was not aware that the basket presented a dangerous condition. Phar-Mor presented evidence that showed that the proper manner to set up the basket was with the metal legs, which the Goffs call "protruding wire prongs," supporting the basket, which was how the basket was set up at the time Mrs. Goff fell.

The Goffs called as their first witness Michael Broughton, the store manager. Broughton was called as an adverse witness. He testified that the basket Mrs. Goff allegedly caught her foot under had been erected in accordance with the manufacturer's instruction. He testified that, when erected, the basket rested upon metal legs, which created a toe space underneath the basket. He also testified that the basket could be set up to eliminate the toe space.

During the trial, the Goffs' counsel moved to be allowed to take pictures of the Phar-Mor store where the accident occurred, to show that the baskets were at that time being used upside down and on pallets. The trial court allowed this, over the objection of Phar-Mor. The next day the Goffs introduced the time-of-trial photographs into evidence, again over the objection of Phar-Mor, for the express purpose of proving feasibility and proving product misuse. The jury verdict was for the Goffs.

The Goffs alleged that Phar-Mor negligently or wantonly failed to maintain its premises in a reasonably safe condition. In order to prevail, the Goffs had to show that the premises were not in a reasonably safe condition and that Phar-Mor knew or should have known of the unsafe condition.

"Storekeepers ... have a duty to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their customers. The storekeeper is not an insurer of the customer's safety, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. The burden rests upon the plaintiff to show that the injury was proximately caused by the negligence of the storekeeper or one of his servants or employees. Actual or constructive notice of the presence of the offending substance or condition must be proven before the proprietor can be held responsible for the injury."

Clayton v. Kroger, 455 So.2d 844, 845 (Ala.1984).

The issue on appeal is whether the trial court erred in admitting the time-of-trial photographs over Phar-Mor's objection that the photographs were inadmissible as evidence of subsequent remedial measures offered to prove prior culpable conduct.

"It is axiomatic that rulings as to the admissibility of evidence rest largely within the discretion of the trial court. Such rulings will not be disturbed on appeal in the absence of a gross abuse of discretion." Russellville Flower Craft, Inc. v. Searcy, 452 So.2d 478, 480 (Ala.1984). In this case, the trial court's discretion is circumscribed by the well established rule that subsequent remedial measures are not admissible to prove antecedent negligence or culpable conduct.

The general rule excluding evidence of subsequent remedial measures is that "evidence of repairs or alterations made, or precautions taken, by the defendant after the injury to the plaintiff in an accident [are] not admissible as tending to show the defendant's antecedent negligence [or culpable conduct]." Charles W. Gamble, McElroy's Alabama Evidence § 189.02(1) (4th ed. 1991) (citing Macon County Comm'n v. Sanders, 555 So.2d 1054 (Ala.1990); Hyde v. Wages, 454 So.2d 926 (Ala.1984); Banner Welders, Inc. v. Knighton, 425 So.2d 441 (Ala.1982)). Under the rule, subsequent remedial measures have been excluded on two grounds: (1) that evidence of a subsequent repair or change was irrelevant to show antecedent negligence, see Hart v. Lancashire & Yorkshire Ry., 21 L.T.R. 261, 263 (1869), cited in Comment, The Impeachment Exception to Rule 407: Limitations on the Introduction of Evidence of Subsequent Measure, 42 U.Miami L.Rev. 901, 903 (1988); see also Proposed Rules of Evidence, 46 F.R.D. 161, 236 (1969); and (2) that public policy favored promoting safety by removing the disincentive to repair, see Alabama Power Co. v. Marine Builders, Inc., 475 So.2d 168, 171-72 (Ala.1985); see also Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir.1986). Even though the rule was established to exclude evidence of subsequent remedial repairs or alterations, evidence of such repairs or alterations can be introduced for certain purposes other than proving antecedent negligence or culpable conduct:

" '[E]vidence of subsequent remedial repairs ... 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).' "

Holland v. First National Bank of Brewton, 519 So.2d 460, 462 (Ala.1987) (quoting Banner Welders, Inc. v. Knighton, 425 So.2d 441, 444-45 (Ala.1982)).

In Holland, this Court established a three-factor test for the admissibility of evidence of subsequent remedial measures offered for "other purposes":

"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. 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."

Id. at 462 (citing Charles W. Gamble and Gwen L. Windle, Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L.Rev. 547 (1986)).

The record here reflects that Phar-Mor objected to the Goffs' request to the trial court that they be permitted to "photograph the display basket as [it was] at the time of trial." Later, Phar-Mor moved for a mistrial, and the following discussion was had on the record:

"THE COURT: All right. Mr. Carr, what do you have?

"MR. CARR: A motion for mistrial in violation of subsequent remedial measures.

"THE COURT: Violating what?

"MR. CARR: Subsequent remedial measures. [The Goffs' attorney] did an excellent job trying to set it up so that he could argue it with something else, but it is clear and if it was anything other than that I challenge him to tell me.

"MR. CUNNINGHAM: I can tell you exactly what it is. If you assume it's a subsequent remedial measure, once the witness denies that it is feasible, you are then permitted to talk about it all day long. Once he says it can't be done that way, if you've got evidence that in fact they did it that way, it comes into evidence, number one. Number two, it's not a subsequent remedial measure, it's misuse of a product, they misused the product. They had it upside down and that's the point of my--

"THE COURT: You know, that's what I thought he was talking about.

"MR. CARR: [Broughton] did not say it wasn't feasible, first. Second, it is no evidence that it's misuse of products--They could have sued the manufacturer if they thought there was some problem or something with that, but--

"MR. CUNNINGHAM: Not if you're putting it upside down.

"THE COURT: All right. Motion denied."

The trial court allowed the photographs taken at the time of trial to come into evidence. The Goffs' attorney argued the following in closing argument:

"Let me put it this way. If we had tried this case and the only evidence you had seen, and the only evidence you had heard about were these photographs [meaning the photographs taken by Mr. Goff shortly after the incident], you would have never known and probably like me would have never figured out that you can pull the bottom out of the basket, turn it over, stick it back in and use it for the same purpose without any...