Tort Law

Editor:
Keith A. Cutler, Esquire

Evidence of subsequent remedial measures undertaken by a non-party is admissible in a negligence case.  Emerson v. The Garvin Group, LLC, No. 98536 (Mo. App. E.D., April 23, 2013), Norton, J

Plaintiff worked at an electronics manufacturing plant.  The plant hired defendant to strip, clean, wax, and buff the floors of the plant.  While Defendant was cleaning the floors, Plaintiff slipped and fell as she walked through the plant.  There were no warning signs, cones, or tape indicating that the floor where Plaintiff fell was being cleaned.   Plaintiff filed suit against Defendant (the floor cleaning contractor) for negligence.  At trial, Plaintiff sought to introduce evidence that, after the date of her fall, the plant directed Defendant to start using warning signs or tape to mark the areas of the floor being cleaned.  Defendant objected to this evidence on the grounds that it constituted a subsequent remedial measure.  The trial court excluded the evidence, and Plaintiff appealed. 

Held:
  Reversed and remanded.  The general rule is that evidence of subsequent remedial measures taken to remedy an allegedly defective condition is not admissible to prove negligence The reasoning behind this rule is the public policy of encouraging safety improvements; if such remedial measures could be used as evidence of an unsafe condition, no one would undertake to remedy the condition .   However, in this case, the subsequent remedial measures were not undertaken by the Defendant (the cleaning contractor); they were undertaken by a non-party to the lawsuit (the plant).   Based on that, Plaintiff argued that the public policy is not implicated; because evidence of subsequent remedial measures taken by a non-party cannot expose that party to liability, that party will not be discouraged from taking the remedial measures.  The court of appeals agreed, and held that the exclusionary rule barring evidence of subsequent remedial measures does not apply when the measure was implemented by a non-party.

The dissenting opinion highlighted that, although the subsequent remedial measures were ordered by a non-party, the non-party directed that Defendant actually implement them.  This evidence, according to the dissent, is arguably more prejudicial to the Defendant than if the Defendant had voluntarily undertaken the measures itself.  As such, the public policy supporting the general rule is equally compelling under the facts of this case, and the trial court’s judgment should have been affirmed.


Generally, an award of medical expenses alone, without an award for pain and suffering, is invalid. Meier v. Schrock, No. 98728 (Mo. App. E.D., May 7, 2013) Hoff, J.

As a result of an automobile accident with Defendant, Plaintiff sustained a traumatic brain injury, a fractured right arm, fractured ribs, and a collapsed lung. He was hospitalized for eleven days, and incurred medical expenses exceeding $300,000.  Plaintiff filed a personal injury suit against Defendant and, after a bench trial, the court found in favor of Plaintiff. The court awarded Plaintiff the amount of his past and future medical bills, but awarded nothing for Plaintiff’s pain and suffering.  Plaintiff appealed.

Held:
 Reversed and remanded.  Although the amount of damages to be awarded in a personal injury case is left to the discretion of the trial court, under Missouri law, an award of medical expenses alone, without an award for pain and suffering, is invalid and will be set aside almost as a matter of course.  During the trial, there was testimony from Plaintiff’s wife, son, friend, neurosurgeon, orthopedic surgeon, and orthopedic traumatologist about the pain Plaintiff endured from the injuries he sustained and from the treatment he underwent.   Given the ample undisputed evidence before the trial court regarding Plaintiff’s pain and suffering resulting from the injuries he sustained in the accident, the court of appeals determined that the trial court’s failure to award non-economic damages was an abuse of discretion.