Improving Workplace Safety Procedures During Litigation: Will It Hurt Your Case?
06/23/08
The initial discussion regarding post accident safety improvements (legally referred to as “subsequent remedial measures”) resolves around the type of litigation with which you are involved. Thus, a first incident involving an OSHA citation, even if a fatality is involved, differs than if the incident involves a state law, third party liability claim. Which in turn differs from a CERCLA or other environmental claim litigation. Subsequent remedial measures may be treated differently depending upon the forum within which you find yourself.
OSHA requires that all safety hazards be immediately abated. Further, any OSHA compliant safety program requires a constant review and improvement process. 29 CFR 1926.20(b). Further, under the “new” Focused Inspections in Construction program by OSHA, many construction employers have found their fines and penalties substantially reduced or abated by simply cooperating with OSHA as part of the post accident inspection process to identify and abate dangerous conditions, in addition to enhancement of training programs.
In a state law tort action, it could be very damaging to a party’s case if there is evidence that acknowledges or corrects the injury causing hazard. Both Kansas and Missouri recognize that evidence of subsequent remedial measures should not be admissible for the purpose of establishing liability.
Having said that, I quote from a local leading plaintiff’s law firm’s website, “If all that stands in the way of your introducing an important piece of evidence is the subsequent remedial measures rule, fear not. There are numerous other purposes for which such evidence, properly introduced, will be admissible, provided a proper foundation is laid.”
To that extent a party must make sure that their actions are protected by the rule, that is they must be subsequent remedial measures. Evidence of knowledge of a potential hazard with no action to correct until after the hazard causes an injury may not be protected by the rule and will like increase a party’s liability exposure.
Further, the corrective action must be remedial of the hazard which resulted in the injury and arguably of the injury itself. That means that the measure must both actually correct the hazardous condition from which the injury arose and it must have been made in response to knowing about the hazard.
Even if the evidence appears to be protected under the subsequent remedial measures rule, it may yet be admissible. Missouri Courts have repeatedly stated: “Subsequent remedial measures may be admissible if offered for a purpose other than drawing an inference of negligence from the fact of repairs.” Danbury v. Jackson County, 990 S.W.2d 160, 166 (Mo. App. W.D. 1999). This broad rule permits one to properly introduce evidence, ordinarily inadmissible under the subsequent remedial measures rule, in a variety of situations.
Evidence of subsequent remedial measures is admissible to “show the condition of the accident site at the time the accident occurred.” Id. at 165; to prove control, to establish the feasibility of precautionary measures when the issue is in dispute, and for use for impeachment or rebuttal.” Ielouch v. Missouri Highway & Transp. Comm'n, 972 S.W.2d 563, 566 (Mo. App. W.D. 1988); to prove knowledge of the hazard at the time of the incident.
A separate but related issue to the admissibility of subsequent remedial measures, is whether evidence of the presence on absence of prior accidents is admissible. Unless the defendant is or should have been on notice of the hazardous nature of the defective condition, a submissible case cannot be made. While in the past, the general rule has been that “evidence of the lack of prior accidents is inadmissible…the recent trend is toward admissibility of such evidence to show: (1) absence of defect or condition alleged; (2) lack of a causal relationship between the injury and the defect or condition charged; (3) the nonexistence of an unduly dangerous situation; or (4) want of knowledge of (or of grounds to realize) the danger.” Carbin v. National Super Markets, Inc., 823 S.W.2d 93 (1991) (citation omitted).
Thus, many times evidence of subsequent remedial measures may be admissible, albeit with a court instruction “limiting the use” of the evidence. However, in today’s world, increasing jury studies have shown that evidence of subsequent remedial damages often reduces a parties damages’ liability if it is proven that the remedial measures were taken as part of an ongoing safety program with the intent to improve safety to those affected. Thus, although the evidence may increase the likelihood of being found liable, the evidence of subsequent remedial measures is likely to result in substantially reduced damage liability exposure.
See Are You Prepared For Accidents?; Developing Protocol For Accident Documentation; Differences Between Employee and Third-Party Accidents; Preserving The Accident Site and Other Evidence; Selecting a Company Spokesperson and What Information to Divulge.
For more general information, visit Construction Law.
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