Subsequent Remedial Repairs may be Admissible---but, not to Prove Liability

Barry Goldberg is confronted from time to time with dangerous situations that cause a serious accident and is later repaired by a defendant. Logically, most injury victims would assume that those repairs are like a "smoking gun" admission that the defendant was at fault for the accident. Not so fast. Because there is a strong public policy favoring subsequent remedial repairs, the Legislature enacted Evidence Code Section 1151, which provides:

"When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event." (Italics added.)

Enterprising trial lawyers have attempted to test the subsequent remedial repair statute for decades. There a few exceptions that can be very effective in the hands of an experienced trial lawyer which will be discussed below. A clear example of a common situation is when a land owner fixes a hole that a plaintiff tripped on. The argument is that ---as a public--- we want that hole fixed and we do not want the landowner to leave it open and exposed for fear that evidence of the repair will come before the jury and establish his liability.

Section 1151 was enacted in 1965 and promotes the public policy of encouraging remedial conduct. "The admission of subsequent repairs to prove negligence would substantially discourage persons from making repairs after the occurrence of an accident."

Even before the statute, the doctrine was recognized by California case law. See, Helling v. Schindler (1904) 145 Cal. 303 (Helling). In Helling, the plaintiff's hand "was badly cut by the knives of a buzz-planer while he was using such planer in the course of his employment." (Id. at p. 305.) He alleged the accident was caused by dull planer knives and a loose belt on the machine. (Id. at pp. 305-306.) The plaintiff obtained a judgment and the defendant employer appealed, contending the trial court erred by admitting evidence that after the accident the planer knives were sharpened and the belt was tightened. (Id. at p. 311.)

The Supreme Court reversed the judgment, concluding the evidence was inadmissible to prove negligence, including the disputed element of causation. (Helling, supra, 145 Cal. at p. 311.) The court explained: "The only conceivable effect of this evidence as to the sharpening of the knives, limited as it was to the mere fact of the making of repairs immediately after the accident, was to impute to defendant's foreman an admission to the effect that the knives were so dull as to render the machine unsafe for use, and that such condition was the cause of the accident. Assuming that the foreman could bind the defendant by any such admission, it is now well settled in this state, in accord with the rule prevailing generally elsewhere, that evidence of precautions taken and repairs made after the happening of the accident is not admissible to show a negligent condition at the time of the accident." (Id. at p. 312, first italics added.)

The Helling court added: " 'The fact that an accident has happened, and some person has been injured, immediately puts a party on a higher plane of diligence and duty, from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than to condemn the person so acting. If the subsequent act is made to reflect back upon the prior one, although it is done upon the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negligence, which has no business there, not being in existence at the time.' " (Helling, supra, 145 Cal. at pp. 312-313, citing Nally v. Hartford Carpet Co. (1884) 51 Conn. 524.) Further: " 'To hold that an act of repairing affords evidence tending to show that a previous injury was the result of a defect in the appliances would deter a prudent person from making repairs.' " (Helling, at pp. 313-314, citing Louisville etc. Ry. Co. v. Malone (1895) 109 Ala. 518; 1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence, § 170, p. 593, citing Helling, at p. 312.)

In Dow v. Sunset Telephone and Telegraph Company (1910) 157 Cal. 182 (Dow). the plaintiff was injured while working on a phone line. Over a defense objection, a defense witness was compelled to testify 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. (Id. at p. 188.) 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." (Ibid.; Roddiscraft v. Skelton Logging Co. (1963) 212 Cal.App.2d 784, 801 ["An inference that a state of affairs existed at a certain time may be reinforced by evidence that it continued to exist at a subsequent time, provided that too long a period has not elapsed and conditions have not changed."], citing Dow, at p. 182.)

Section 1151 " 'does not require the exclusion of evidence of subsequent measures when offered for another purpose [besides negligence], such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.' " (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1169.)

Back to our common example of the hole that caused an accident. If there is a question about who owned or controlled the area, the repair is admissible to show who owned or controlled the area. In our office, we always depose the person who made the repair with the likelihood of obtaining "impeachment" evidence. For example, if the owner testifies that the land was safe or that repairs would have been too costly, the fact of the actually subsequent repair can be used to impeach that testimony; i.e., if it was safe, why did you repair it? Or, if it was so costly to repair, how do explain that the hole was fixed for $100?

Of course, the facts of each individual case must be considered when planning to make subsequent remedial repairs admissible. Moreover, trial judges are very protective of Section 1151 and could still make the evidence inadmissible because the relative value of the evidence is outweighed by the prejudice it would cause. Really, once the jury hears that the dangerous condition was repaired, liability is all but established.


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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