Voynar v. Butler Mfg. Co.

• Citation: 10 Fla. L. Weekly 269,463 So.2d 409
• Decision Date: 30 January 1985
• Docket Number: No. 83-1174,83-1174
• Parties: 10 Fla. L. Weekly 269 Brenda VOYNAR, as Personal Representative of the Estate of Wesley Voynar, deceased, Appellant, v. BUTLER MANUFACTURING COMPANY, a foreign corporation, Appellee.
• Court: Court of Appeal of Florida (US)

Page 409

463 So.2d 409

10 Fla. L. Weekly 269

Brenda VOYNAR, as Personal Representative of the Estate of Wesley Voynar, deceased, Appellant, v. BUTLER MANUFACTURING COMPANY, a foreign corporation, Appellee.

No. 83-1174.

District Court of Appeal of Florida Fourth District.

Jan. 30, 1985.

Rehearing or Certification Denied Feb. 28, 1985.

Robert L. Donald of Pavese, Shields, Garner, Haverfield, Dalton & Cottrell, Fort Myers, and William S. Frates, II, of Frates & McCall, Palm Beach, for appellant.

Marjorie Gadarian Graham, Charles H. Damsel, Jr., of Jones & Foster, P.A., West Palm Beach, for appellee.

GUNTHER, BOBBY W., Associate Judge.

Wes Voynar, a construction worker, was fatally injured while working on the partially completed roof of a prefabricated steel building manufactured by appellee. During his fourth day on the job, Voynar stepped on an unsecured roof panel which buckled and slipped out from under him causing him to fall twenty feet to his death. Appellant, his ex-wife and mother of his son, sued appellee, the manufacturer of the prefabricated steel building, alleging causes of action in negligence and strict liability.

Appellant challenges the verdict and judgment in favor of appellee, contending the trial court erred when it excluded evidence of subsequent remedial measures and prior accidents, and when it denied a requested jury instruction. We find no reversible error.

Voynar's employer, Tri-Cities Construction, Inc., purchased from appellee the prefabricated building kit containing the Butlerrib II roof panels from which the deceased fell. The roof panels were designed to be installed with a roof slope of one-half inch in every twelve inches. Prior to being packaged in bundles, each individual panel is coated with oil by the manufacturer to prevent corrosion during shipping. This oil makes the panels slippery while they are being installed. The instruction manual furnished by the appellee not only warns of the slippery nature of the panels, but also cautions the installer to walk only on or near the support purlins, and not to step on the major corrugations because the panel can buckle. Tri-Cities' foreman warned Voynar of the dangers of slipping and buckling, and instructed him how and where to walk while the roof was under construction.

Subsequent to this accident, appellee began using an oil which evaporates upon exposure to air, and also began attaching warning flyers to each bundle of roof panels in addition to the warning in the instruction manual.

The trial court did not err in excluding evidence of these subsequent remedial measures as they related to either the negligence action or the strict liability action.

Section 90.407, Florida Statutes (1983), clearly makes such evidence inadmissible in negligence actions. It provides:

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.

Unlike Section 90.407, Federal Rule 407 specifically states certain exceptions which can result in the introduction of such evidence in negligence actions. Federal Rule 407

does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Although the Florida codification of this rule of evidence does not list any exceptions, our courts recognize and permit certain exceptions for the introduction of such evidence in negligence actions. E.g., Murray v. Almaden Vineyards, Inc., 429 So.2d 24 (Fla. 2d DCA 1983); Hethcoat v. Chevron Oil Co., 383 So.2d 931 (Fla. 1st DCA 1980); accord, Pensacola Inn, Ltd. v. Tuthill, 404 So.2d 1173 (Fla. 1st DCA 1981); American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981).

The record fails to support appellant's contention that feasibility of change or any other factual questions were in controversy which would warrant the admission of evidence of subsequent changes as to the negligence cause of action. Nor was the evidence necessary for impeachment.

There is a split of authority in the various jurisdictions on the question of whether evidence of subsequent remedial measures is admissible in strict liability actions.

We are aware of Ault v. International Harvester Co., 13 Cal.3d 113, 528 P.2d 1148, 117 Cal.Rptr. 812 (1975), but prefer the reasoning of Werner v. Upjohn Co., 628 F.2d 848 (4th Cir.1980). We agree with the Fourth Circuit Court of Appeals:

The rationale behind Rule 407 is that people in general would be less likely to take subsequent remedial measures if their repairs or improvements would be used against them in a lawsuit arising out of a prior accident. By excluding this evidence defendants are encouraged to make such improvements. It is difficult to understand why this policy should apply any differently where the complaint is based on strict liability as well as negligence. From a defendant's point of view it is the fact that the evidence may be used against him which will inhibit subsequent repairs or improvement. It makes no difference to the defendant on what theory the evidence is admitted; his inclination to make subsequent improvements will be similarly repressed.

Werner v. Upjohn Co., 628 F.2d at 857.

In American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981), the court did not squarely address the issue and make an absolute statement that subsequent changes are inadmissible in strict liability cases. However, when the entire opinion is read it is apparent that that case involved both negligence and strict liability claims and the court talked in general terms of such subsequent changes being generally inadmissible in that type of case. Thus, it appears that the court accepted the practical application of the rule without expressly addressing its applicability to a strict liability action.

Another factor influencing our decision is Section 90.403, Florida Statutes, which comes into play in the question of the admissibility of subsequent changes:

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.

Strict liability requires that a manufacturer not put an unsafe product into the stream of commerce. It does not require the manufacturer to produce a foolproof product, or the safest possible product. See Clark v....