Evidence Code § 1151 – Evidence of Subsequent Remedial Measures Following Shopping Center Robberies

by Low, Ball & Lynch
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Carl McIntyre, et al. v. The Colonies-Pacific, LLC

California Court Of Appeal, Fourth Appellate District (July 31, 2014)

California Evidence Code § 1151 excludes evidence at trial of a defendant’s subsequent remedial measures to prove “negligence or culpable conduct.”  In this case, the issue was whether the trial court abused its discretion in excluding evidence under § 1151.

Plaintiff Carl McIntyre (“McIntyre”) owned a jewelry store called My Jeweler, located in the Colonies Crossroads shopping center.  The shopping center was owned by The Colonies-Pacific, LLC (“Colonies”).  In January 2006, two stores in the shopping center were robbed at gunpoint.  McIntyre expressed concern about the lack of security to Colonies’ property management company, and he was told that security was not budgeted and that Colonies could not charge tenants for security without the approval of two anchor tenants.  One of the anchor tenants also sent a letter to Colonies asking what it planned to do about security.  The robberies were reported to Colonies, but Colonies decided not to provide security or seek the anchor tenants’ approval of an expense for security.  Instead, Colonies asked the local police department to “step up the patrol through the center” because it believed the police were more capable than the private security force.

On August 16, 2006, My Jeweler was robbed.  The robbers shattered the glass display cases, pistol-whipped Mr. McIntyre and stole jewelry, cash and digital security equipment.  After this robbery, Colonies hired a security service to provide an unarmed guard to patrol the common areas of the shopping center.  McIntyre sued Colonies for negligence and premises liability.  At trial, Colonies brought a motion in limine under Evidence Code § 1151 to exclude evidence of subsequent remedial measures.  McIntyre argued that § 1151 was inapplicable because he did not intend to use the evidence to show Colonies was negligent, but rather to show that the lack of a security patrol was the cause of the robbery.  The court granted Colonies’ motion, and the jury returned a special verdict finding that Colonies was negligent, but that its conduct was not a substantial factor in causing McIntyre’s damages.

McIntyre appealed on the basis that the trial court’s evidentiary ruling was an abuse of discretion.  He asserted that the term “negligence” in the statute refers exclusively to the breach of duty issue, and evidence of subsequent remedial measures is admissible to show the issue of causation.  Colonies countered that the term “negligence” necessarily includes each element of a negligence cause of action, including causation.

The Court of Appeal acknowledged that the term “negligence” in §1151 is not defined, and because it is reasonably susceptible to both parties’ interpretations, the Court analyzed the legislative history of §1151, and also the seminal case of Helling v. Schindler (1904) 145 Cal. 303 (“Helling”).  In Helling, the plaintiff’s hand was badly cut by the knives of a buzz-planer that he was using in the course of his employment.  He alleged the accident was caused by dull planer knives and a loose belt on the machine.  The plaintiff obtained a judgment and the defendant employer appealed, contending that the trial court erred by admitting evidence that after the accident, the planer knives were sharpened and the belt was tightened.  The Supreme Court reversed the judgment, concluding the evidence was inadmissible to prove negligence, including the disputed element of causation.

McIntyre did not cite Helling.  Instead he relied on Dow v. Sunset Telephone and Telegraph Company (1910) 157 Cal. 182 (“Dow”).  In Dow, the plaintiff was injured while working on a phone line.  Over a defense objection, a defense witness testified that after the accident he found electrical wires that were in contact with each other (which caused the wire the plaintiff was working on to be supercharged) and he removed one of the wires.  The Supreme Court held the evidence was admissible “not of subsequent repairs, but of a condition shown to have existed before the accident, and continuing after the accident, and tending to establish the cause of the accident by further showing that when the condition was changed the trouble was removed.”

The McIntyre Court believed that the Dow exception to the rule of inadmissibility was not helpful because the conditions at the shopping center when the jewelry store was robbed were undisputed.  Thus, evidence that Colonies hired a security service after the robbery was unnecessary to show there was no security service prior to the robbery.  The Court found the McIntyre’s case akin to Helling, since the purpose of the subsequent remedial measures evidence was to show there was a “negligent condition” of the shopping center that caused the armed robbery.

The Court also addressed public policy considerations, noting that admission of evidence that Colonies subsequently hired a security service, which improved safety, would discourage others similarly situated from undertaking such measures, an outcome that would thwart public policy.  Even though some exceptions to the rule of exclusion have been carved out, “courts and legislatures have frequently retained the exclusionary rule in negligence cases as a matter of ‘public policy,’ reasoning that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident has occurred.”  The Court affirmed the judgment of the trial court.

COMMENT

This decision reaffirms the general rule of § 1151, and it emphasizes the importance of Legislative intent to interpret critical terms such as “negligence.”  The Court focused on public policy considerations when the issue of subsequent remedial measures impacts public safety.  Yet it also recognized that exceptions to § 1151 continue to apply where evidence is admissible for another purpose [besides negligence], such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.

For a copy of the complete decision, see:
http://www.courtinfo.ca.gov/opinions/documents/D065469.PDF

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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