Anderson v. Malloy, 700 F.2d 1208

U.S. Court of Appeals

1983

Chapter

8

Title

A Return to Relevance I:  Limits Based on Policy

Page

345

Topic

Subsequent Remedial Measures:  Controverted

Quick Notes

o         The Andersons where guest at a motel.  Linda Anderson was assaulted and raped after an assailant forcibly entered the room.  The Andersons filed suit alleging that the Df - negligently failed to provide them with reasonably safe lodging and fraudulently misrepresented the level of security to the motel guests. The Trial Court refused to admit evidence that the Df - installed safety chains and peep holes in the entrance doors of the motel rooms.

Rule 407. Subsequent Remedial Measures

o    When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. 

Exceptions

o    This rule 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.

Court Df - controverted the feasibility

o         With this testimony the defendants controverted the feasibility of the installation of these devices, because the defendant Malloy in effect testified that these devices were not "capable of being utilized or dealt with successfully."

Court Pl have every right to rebut inference

o         The plaintiffs were entitled to show affirmatively that these devices were feasible, and furthermore to impeach the credibility of the defendants by showing that, although the defendants testified that they had done everything necessary for a secure motel, and that chain locks and peep holes would not be successful,

o         They in fact took further security measures after Linda Anderson was raped, and in fact installed the same devices that they testified could not be used successfully.

o    (If they were not needed the why did they install them???)

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether subsequent remedial measures can be admissible if precautionary measures are controverted?  Yes

Procedure

Trial

o         Verdict for the Df.  Excluded evidence under rule FRE 407.

Appellant

o         Vacated and Remanded.

Facts

Discussion

Key Phrases

Rules

Pl - Anderson

Df - Malloy

Description

o         The Andersons where guest at a motel.  Linda Anderson was assaulted and raped after an assailant forcibly entered the room. 

o         The Andersons filed suit alleging that the Df - negligently failed to provide them with reasonably safe lodging and fraudulently misrepresented the level of security to the motel guests. 

Court Refused to admit

o         The court refused to admit evidence that the Df - installed safety chains and peep holes in the entrance doors of the motel rooms.

Defense Safe Arg

o         They did everything reasonably safe.

Defense Pl - Negligence Arg

o         She was negligence opening the door to a stranger.

FRE 407 prohibits (When offered to prove negligence or culpable conduct)

o         Rule 407 prohibits the admission of evidence of subsequent remedial measures when the evidence is offered to prove negligence or culpable conduct.

Pl Arg

o         The plaintiffs assert on appeal that the defendants controverted the feasibility of the use of peep holes and safety chains.

o         Thus, the plaintiffs argue that the evidence comes within the exception of rule 407.

Defense open up the issue about the absence of peep holes or chain locks

o         Question:  Did the police chief indicate to you anything about putting thee peepholes in the doors?

What does feasibility mean?

o         Whether something is feasible relates not only to actual possibility of operation, and its cost and convenience, but also to its ultimate utility and success in its intended performance.

1.     Possible

2.     Capable of being utilized, or dealt with successfully.

Court False sense of security inference

o         Not only infers that the devices would not successfully provide security, it also infers that the devices would in fact create a lesser level of security if they were installed.

Court Df - controverted the feasibility

o         With this testimony the defendants controverted the feasibility of the installation of these devices, because the defendant Malloy in effect testified that these devices were not "capable of being utilized or dealt with successfully."

Court Pl have every right to rebut inference

o         The plaintiffs were entitled to show affirmatively that these devices were feasible, and furthermore to impeach the credibility of the defendants by showing that, although the defendants testified that they had done everything necessary for a secure motel, and that chain locks and peep holes would not be successful,

o         They in fact took further security measures after Linda Anderson was raped, and in fact installed the same devices that they testified could not be used successfully.

o    (If they were not needed the why did they install them???)

Court Trial Courts Application for 407

o         it was an abuse of discretion for the trial court to refuse to admit the only evidence that would effectively rebut the inferences created by the defendants.

Court - Holding

o         We find the trial court committed prejudicial error in the ruling discussed above; accordingly, we vacate the judgment of the district court, and remand the case for a new trial.

DISSENT

o         Majority stretches feasibility.

o         Should be about necessity or desirability.

o         Pl - make no contention of impeachment exception.

o         Closing argument certainly cannot be use to justify introduction of evidence during the court of the trial.

Rules

Rule 407. Subsequent Remedial Measures

o    When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. 

o    This rule 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

o    Gilberts

o    Subsequent Remedial Measures Not admissible to show negligence or culpable conduct.

o    Exceptions:

o    i. To show ownership and control when ownership and control is disputed.

o    ii. To rebut or impeach To show the feasibility of a precautionary measure when the feasibility is controverted.

Class Notes