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Timing is Everything: Missouri Appellate Court Reminds Us Evidence Cannot be Excluded as "Subsequent Remedial Measures", Where the Remedies Preceded the Accident

April 15, 2020 | Terrence O'Toole, Jr.

In Patricia Watson v. City of St. Peters, the plaintiff alleged she was riding her bicycle along a stretch of sidewalk in the City of St. Peters, Missouri in late August 2014 where she had never ridden before. After cresting a hill the plaintiff testified she saw “something bizarre in the middle of the sidewalk” which turned out to be a sump inlet designed to funnel storm water from the street into a storm sewer at the bottom of the hill.  The inlet extended into the sidewalk, creating an opening and narrowing the traversable portion of the sidewalk.

At the same time, a witness happened to drive past plaintiff as she rode down the hill and also saw the inlet jutting into the sidewalk.  The witness later testified that he was concerned that the plaintiff might not see the opening in the sidewalk and thus checked his rearview mirror.  When he did, the witness saw the front wheel of the plaintiff’s bicycle go into the inlet, causing her to flip head-first onto the sidewalk and resulting in multiple facial fractures.  The plaintiff subsequently sued the City of St. Peters for negligence, alleging the inlet was an unreasonably dangerous condition that was not open and obvious, and sought monetary damages for her personal injuries. 

At trial, the City introduced evidence that the traversable portion of the sidewalk was four feet wide and that it had been constructed in compliance with local and state requirements, as well as the federal Americans with Disabilities Act. 

In response, the plaintiff sought to introduce evidence of a 2012 bicycle accident involving a sump inlet in a sidewalk at a different location in the City and the City’s resulting program to retrofit or bridge all of the sump inlets to make the City’s sidewalks safer.  Outside of the hearing of the jury, a representative of the City testified the City began retrofitting its sump inlets after learning of the 2012 bicycle accident and before the plaintiff’s accident in 2014.  He also confirmed the City had planned to retrofit all the sump inlets citywide, but had not erected any warning signs or painted the curbs around the sump inlets while the retrofitting was ongoing.

The trial court subsequently refused plaintiff’s offer of proof and excluded evidence of the 2012 bicycle accident and the City’s sump inlet retrofitting program.  The trial court also excluded references in a written statement from the witness describing the inlet as extending “extremely” into the sidewalk and constituting a “hazard,” while admitting a prior inconsistent statement attributed to the plaintiff from a police report that she had ridden on the stretch of sidewalk “every day”.  The jury returned a verdict attributing one hundred percent of the fault to the plaintiff and finding in favor of the City.

On appeal, the plaintiff asserted the trial court erred by excluding evidence that the City had notice of a problem with the sump inlets and had taken steps to make the design safer before the plaintiff’s accident.    

The Missouri Court of Appeals for the Eastern District agreed with the plaintiff and held that the trial court abused its discretion in excluding as subsequent remedial measures the evidence that the City had notice of a problem with the sump inlets and had taken steps to make the design safer before the plaintiff’s accident.  The Appellate Court commented that the public-policy rationale for the general rule excluding post-accident remedial measures did not apply to a defendant like the City who was aware of a problem and had already proposed remedial measures before an accident like the one at issue had occurred.   

The appellate court further noted that the exclusion of the “clearly material and probative evidence” of the City’s retrofitting program prejudiced the plaintiff by hindering her ability to prove an essential element of the case regarding the City’s knowledge of the condition.  Thus, the appellate court reversed the trial court’s exclusion of the evidence and remanded the case for a new trial.

The appellate court’s decision in Watson was limited to the specific facts of the case concerning the defendant’s knowledge and actions before the accident.  While it did not abrogate the longstanding rule in Missouri that a trial court should exclude evidence of subsequent remedial measures in a negligence case, defense counsel should remain wary of efforts to cite the decision in future cases to avoid application of the rule under dissimilar circumstances.   
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