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What are subsequent remedial measures and why can’t you talk about them in front of a jury?

Imagine you’re injured after a slip-and-fall at the front door of a Walmart. You lawyer tells you the case will focus on whether Walmart SHOULD have had safety mats near their front doors. He’ll be arguing to the jury, ultimately, that Walmart should have known that the front area of the store is subject to flooding and a reasonable company would have spent the few extra bucks on safety mats to keep their customers safe.

Other than a “smoking gun” email between managers that says “We totally should have put safety mats in the front space and this accident is our fault,” what’s the best possible evidence? The fact that they fixed it after your accident. Funnily enough, that evidence can never come into court. In this article we’ll explains why.


Questions Answered on This Page:

  • What exactly are remedial measures?
  • How do remedial measures work in a personal injury case?

Because we want companies to fix problems, we don’t “penalize” them for doing so.

The Texas rules of evidence try to balance two things: making sure the jury has all relevant information vs. what courts call “public policy.” Courts try to be mindful that what could happen in the courtroom can have negative impacts in the outside world.

For example, spouses testifying against each other may reveal some information that is helpful to the court, but can invade the private sphere of marriage. So, courts have made a policy decision to allow married people to refuse to reveal confidential communications. The same holds true with attorney-client conversations—everyone grasps that clients and attorneys should be able to speak freely about their case.

Well, in that same vein, courts don’t allow in what is fancily termed subsequent remedial measures into evidence. Let’s examine what that term means. Subsequent means “after the fact.” Remedial means “fixed or made safe.” Measures simply refers to the steps taken. Combine it all together and subsequent remedial measures therefore means “steps taken to make a previously dangerous condition now safe.”

If the defendant fixes the problem (“remedying” the dangerous condition), you’re not allowed to use that against them in court. For instance, using our Walmart example above, you wouldn’t be able to argue to the court, “As you can see, the defendant has subsequently installed safety mats. Clearly, this means that they were negligent for not having them in the first place.” That may indeed be 100% accurate, but it’s not allowed into the courtroom because we want the defendant to fix the problem. Courts figured out long ago that many defendants won’t fix the problem that precipitated your lawsuit if fixing the problem is seen as an “admission” that they did something wrong back in the day.

Lawsuits can last many months, even years, and if there is a dangerous condition out there, we don’t want the company’s lawyers to advise the company that it’d be better for defending the case against you if they leave it as is. Imagine that you were injured when, as you were driving your car across a bridge, the pavement beneath you gave way and you fell into a river. If you lived in a world where the mere fact that the bridge owner fixed the giant hole in the bridge could come back to bite them later on, they’d never fix the bridge, and who knows how many other people would fall through the same hole.

The bottom line is that your right to use evidence of a defendant changing their ways must be sacrificed in the interest of encouraging a defendant to do the right thing as to protect other potential victims. In our many years as Texas personal injury attorneys, we know that victims want more than just their due compensation: they don’t want their injuries to happen to anyone else. Courts want that, too. And that’s precisely why this rule exists.

Not a Moment to Waste The importance of a prompt investigation...Read More >

A smart lawyer can still use remedial measures to your advantage.

You don’t practice personal injury law for 25 years without learning a few tricks. As an officer of the court, an attorney must obey the rules of evidence. But that doesn’t mean he has to be blind. Let’s use the safety mats at Walmart as an example. Your attorney will find out one way or another that the new safety mats have been put in place, right? So, while he cannot come right out and ask the Walmart’s managers on the stand if they’ve since employed safety mats, he certainly can ask why they didn’t have them in place at the time of the accident. It would look like this:

  • Attorney: You’re aware of ABC Company’s Model X safety mats, right?
  • Manager: Yes, I am.
  • Attorney: And you’re aware that, while they only cost $2.50 a piece, they keep accidents like the plaintiff’s from happening, right?
  • Manager: I know they can help prevent accidents, yes.
  • Attorney: But you did NOT have them in place on the day of the accident, did you?
  • Manager: No, we did not.

Notice that the attorney got right up to the line of asking the Walmart manager if they have the mats there now while still eliciting an admission that they didn’t have a cheap safety product in place when you were hurt. As you can see, an ethical lawyer can use the information about what remedial measures were taken, while still staying well within the rules.

Call the Attorneys at Grossman Law Offices:

Only an experienced lawyer, trained not only in what the rules are but how to use them will get your case its full value. Don’t wait, call the attorneys at Grossman Law Offices today.


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