Slade v. City of Montgomery

• Decision Date: 15 March 1991
• Citation: 577 So.2d 887
• Parties: Gaines B. SLADE v. CITY OF MONTGOMERY, Alabama. 89-1568.
• Court: Alabama Supreme Court

Page 887

577 So.2d 887

Gaines B. SLADE v. CITY OF MONTGOMERY, Alabama.

89-1568.

Supreme Court of Alabama.

March 15, 1991.

William G. McKnight, Montgomery, for appellant.

J. Bernard Brannan, Jr. of Brannan & Guy, Montgomery, for appellee.

INGRAM, Justice.

Gaines B. Slade filed an action against the City of Montgomery (city), alleging that the city negligently or wantonly maintained a public street and that, as a result, he was injured. Slade brought the suit after he suffered a knee injury when his foot slipped through the bars of a broken storm sewer grate located adjacent to his residence. The city answered Slade's complaint by denying that it was responsible for Slade's injury. The city also asserted the affirmative defense of contributory negligence. Following discovery, the case was tried before a jury, with a verdict returned in favor of the city. The trial court entered judgment on the jury verdict, and Slade's motion for a new trial was denied. This appeal followed.

On appeal, Slade raises seven issues for our review. The first four issues that will be addressed concern whether the trial court erred in refusing to allow certain testimony and exhibits into evidence. The remaining three issues relate to the propriety of certain instructions given to the jury by the trial court.

Slade's first issue is whether the trial court erred in refusing to allow the deposition of Robert Jones, a city maintenance employee, to be read to the jury. Slade contends that Jones was a managing agent whose deposition was taken pursuant to the terms of Rule 30(b)(6), Alabama Rules of Civil Procedure. Therefore, Slade argues that Jones's testimony should have been admitted "for any purpose," pursuant to Rule 32(a)(2), rather than simply for purposes of impeachment as provided in Rule 32(a)(1).

Rule 32(a)(2) governs the admissibility of the deposition of a person representing an organization when the deposition is taken pursuant to Rule 30(b)(6), by providing:

"The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose."

The procedure for the taking of a deposition of a representative of a governmental agency, such as the city in this case, is outlined in Rule 30(b)(6), which provides that:

"A party may in his notice and in a subpoena name as the deponent a ... governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify.... The persons so designated shall testify as to matters known or reasonably available to the organization."

The record in the present case reveals that Slade filed two notices to take a deposition. The first notice, which was filed simultaneously with Slade's complaint, named the "Chief Maintenance Officer or Engineer for Montgomery City streets; and/or other person most familiar with subject of suit" as the deponent. However, no deposition was ever taken as the result of this notice; rather, Slade filed a second notice to take a deposition, naming Robert Jones, Jim Wilder, and Lindel Jones as deponents. The record shows that these three individuals were employees of the city maintenance department. However, at no time did Slade ever file a notice to take a deposition naming the city itself as the deponent as provided in Rule 30(b)(6). Furthermore, neither of the notices to take a deposition contained a description of the matters upon which examination was requested, as provided in Rule 30(b)(6). Therefore, we find that the deposition of Robert Jones, which Slade insists was improperly excluded from evidence by the trial court, was not a deposition of the City of Montgomery taken pursuant to Rule 30(b)(6), and was properly excluded from admission for use "for any purpose" under the provisions of Rule 32(a)(2).

We further note that even if the deposition of Robert Jones had been taken according to the procedure outlined in Rule 30(b)(6), the trial court's refusal to admit the deposition for use for any purpose by Slade is harmless error. In Century Plaza Co. v. Hibbett Sporting Goods, Inc., 382 So.2d 7 (Ala.1980), we were confronted with a situation where the plaintiff sought to introduce the deposition of an agent of the defendant corporation. Although the plaintiff had used the deposition for purposes of impeachment, the plaintiff there, like the plaintiff here, wished to have the entire deposition entered into evidence. The trial court refused, and the issue was raised on appeal. In reviewing the trial court's ruling, we held that the failure of the trial court to admit the deposition of a party for use "for any purpose" under Rule 32(a)(2) does not necessarily and inevitably result in reversible error. In reaching our conclusion that the trial court's refusal to admit the deposition in Century Plaza was not reversible error, we first noted that Alabama Rule 32 is patterned after Federal Rule 32. We also noted that in federal cases involving the application of Rule 32, the courts have concluded that the failure to admit the deposition of a party is merely harmless error, particularly in those situations where, as in Century Plaza, the party had testified and the deposition was used extensively during cross-examination. Century Plaza, supra.

In the present case, Robert Jones was called by Slade to testify as an adverse witness. The record reflects that Slade made repeated use of Jones's deposition for purposes of impeachment, when Jones's testimony at trial conflicted with his answers to questions propounded during the deposition. In light of this, we find that even if Jones's deposition was improperly excluded from evidence, the exclusion was harmless error as to Slade.

The second issue is whether evidence of remedial measures, taken by the city subsequent to Slade's injury, was properly excluded from evidence. The evidence that Slade sought to introduce was the fact that, subsequent to the incident, a city repair crew made alterations to the storm sewer catch basin so that two three-foot grates would be used to cover the catch basin, rather than one six-foot grate.

In his brief, Slade concedes the general rule that evidence of subsequent remedial measures taken by a defendant is inadmissible as tending to show the defendant's antecedent negligence. Hyde v. Wages, 454 So.2d 926 (Ala.1984). As we noted in Hyde, the rationale for this rule is that evidence of subsequent repairs and safety precautions is immaterial and irrelevant on the issue of a defendant's antecedent negligence and that, as a matter of public policy subsequent repairs and safety precautions are to be encouraged in order to prevent future accidents. Indeed, if the improvements or precautions could be introduced against the party making them as proof of prior negligence, that party would be discouraged from improving the place or thing that caused the injury. Hyde, supra. Nevertheless, Slade argues that the evidence in question was due to be admitted as an exception to the general rule.

The exceptions to the general rule of inadmissibility of evidence of subsequent repairs were noted by this court in Banner Welders, Inc. v. Knighton, 425 So.2d 441 (Ala.1982), where we stated:

"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. Another permissible use may occur where such evidence is offered to establish a condition existing at the time of the accident." (Citations omitted.)

The admissibility of evidence of subsequent remedial measures offered for one of these purposes depends on three factors: (1) whether the purpose is material, that is, at issue in the case; (2) whether it is 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. Holland v. First Nat'l Bank of Brewton, 519 So.2d 460 (Ala.1987). Furthermore, 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. Holland, supra.

In the present case, we find that Slade did not offer evidence of subsequent repairs under any of the exceptions set forth in Knighton. Here, the city acknowledged that there was a six-foot grate covering the storm drain in front of Slade's home on the date that Slade's injury occurred. The city further admitted that it had a...