Insurance Company Secret #3 - Subsequent Remedial Measures

Florida Rule of Evidence 90.407 provides that:

"Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made the injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event."

What does this mean? Essentially, this means that if a measure is taken after or subsequent to a personal injury to correct or lessen the risk of injury, it is inadmissible at trial and the jury will never hear of it. For instance, let's assume that a customer slips and falls in the parking lot of a grocery store on black mildew. The customer is injured and requires medical care and treatment for their injuries. A claim is brought against the grocery store and/or owner of the parking lot for negligently maintaining the parking lot so as to allow black mildew to form causing a slippery condition that the grocery store knew or should have known of. Let's assume in response to the customer falling, the grocery store hired a company to come in and pressure clean the parking lot and treat it so that is was no longer slippery. Logical thinking would suggest that the customer who slipped and fell would be able to present evidence to the jury that the grocery store pressure cleaned and treated the parking lot after the slip and fall accident and this action on the part of the grocery store proves they were negligent. Based on the application of Florida Rule of Evidence 90.407, evidence that the grocery store pressure cleaned and treated the driveway is inadmissible. The jury will never hear of this.

Although very unfair to a claimant trying to prove a negligence case, the thought behind the rule is to encourage land owners to keep their premises safe and to prevent other people from getting hurt. The law seeks not to penalize the land owner in this situation for trying to remedy a dangerous condition even if these measures were taken after someone has been hurt.

In light of the fact that this type of evidence is inadmissible, insurance companies use the evidentiary rule to make low ball offers to claimants in these types of cases because they know that evidence of subsequent remedial measures (such as pressure cleaning the parking lot) taken by a land owner will not be heard by a jury and proving the claimant's case is much more difficult. If this type of evidence was admissible, it would make proving a claimant's claim easier and we would see better offers from the insurance companies.