Florida/Georgia Personal Injury & Workers Compensation

...Until the adoption of the Florida Evidence Code in 1976, Florida followed the widely recognized rule that evidence of repairs made after an accident are not admissible to prove negligence or culpability on the part of the defendant. Seaboard Air Line Railway v. Parks, 89 Fla. 405, 104 So. 587 (1925). Section 90.407, Florida Statutes (1981) codifies this long-standing common law rule: Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event....

...Canty, supra , discussed at page 4, supra. There is no merit in Johns-Manville's argument that the admission of the specific items of evidence violates the rule precluding evidence of subsequent remedial measures announced in the cited cases and presently codified in section 90.407, Florida Statutes....

...113; 472 A.2d 577, 580 (A.D. 1984). [8] It should be noted that the Jackson case has been set for hearing en banc in September 1984 so that the panel opinion and decision is deemed vacated. Rule 41.3, Fifth Circuit Rules of Court, U.S.C.A., Court Rules. [9] Section 90.407 reads: Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event....

...Evidence of subsequent remedial measures is inadmissible, of course, as a matter of sound public *1159 policy. See City of Miami Beach v. Wolfe, 83 So.2d 774, 776 (Fla. 1955); Seaboard Air Line R.R. Co. v. Parks, 89 Fla. 405, 104 So. 587 (Fla. 1925); § 90.407, Fla....

...Although the parties have extensively briefed the law regarding the similarity of circumstances rule, it appears to us that the lower court based its ruling primarily on its view that the reports were part of a preventive safety program. The rule of law barring admission of evidence on such basis is embodied in Section 90.407, Florida Statutes, which states: "Subsequent remedial measures....

...The legislative reason expressed for barring the admissibility of such evidence is "that if such evidence could be received against a defendant he would be penalized for an attempt to prevent injuries to others, ... ." Law Revision Council Note-1976, 6B F.S.A. § 90.407 at 435 (1979); see also City of Miami Beach v....

...Even the memorandum dated three days after the decedent's accident is not barred by the "subsequent remedial measures" rule. The memorandum appears to have merely memorialized efforts *1220 taken before the accident. Thus, we conclude that the lower court erred in applying the rule embodied in Section 90.407, because it does not constitute a proper basis upon which to bar admission of this evidence, which we deem to be logically relevant....

...For example a witness cannot express his or her opinion as to the guilt or innocence of a criminal defendant. These opinions are not helpful to the jury and may be misleading. In this situation, the credentials and demeanor of the witness are being used to impress the jury, rather than his testimony. [footnotes omitted] [2] Section 90.407, Florida Statutes: Subsequent Remedial Measures — Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event....

...f duplicates); 99-8, section 5 (amending section 90.503, Florida Statutes, Psychotherapist-patient privilege); 99-8, section 6 (amending section 90.6063(5)(b), Florida Statutes, Interpreter services for deaf person); and 99-225, section 13 (amending section 90.407, Florida Statutes, Subsequent remedial measures), Laws of Florida....

...*45 Finally, appellant contends the trial court erred in excluding evidence of remedial measures taken by appellees after the accident whereby a rubber filling was placed in the flangeway. We find no error in this ruling because in Florida repairs after an injury are not admissible in evidence. § 90.407, Fla....

...Seaboard Coast Line Railway, 306 So.2d 97 (Fla. 1975); Lawrence v. Florida East Coast Railway Company, 346 So.2d 1012 (Fla. 1977). The judge also properly admitted evidence of remedial measures taken by the defendants after prior accidents but before the accident in question. We construe Section 90.407, which prohibits the admission of evidence of remedial measures "taken after an event" as addressing those measures taken after the event giving rise to the cause of action....

...ON MOTION FOR CLARIFICATION ORDERED that appellants' motion for clarification is granted. The "[w]e affirm as to all other issues" part of our May 23, 1990 opinion is clarified as follows: We affirmed as to appellants' Point I on appeal for several reasons. F.S. 90.407 The trial judge did not commit reversible error when, pursuant to Section 90.407, Florida Statutes (1989), she excluded the following deposition testimony of Gary Spardello offered by appellants: Q: Was there a chain or series of chains that was used to hold them [the metal studs] in place? A: Yes, after; we put up a chain after the incident. Q: After the incident. A: Yes. IMPROPER IMPEACHMENT Even if admissible as an exception to section 90.407, as stated in Erp v....

...the accident giving rise to this cause of action. See City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla. 1955); Seaboard Air Line Railway Company v. Parks, 89 Fla. 405, 104 So. 587 (1925); City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964); Section 90.407, Florida Statutes (1987)....

...In the present case, the testimony was admitted solely for the purpose of showing negligence on the part of the appellant and not to rebut a defense of contributory/comparative negligence. See Fasanaro v. Mooney Aircraft Corporation, 687 F. Supp. 482 (N.D.Cal. 1988). This is contrary to Section 90.407, Florida Statutes (1987), and the cited cases....

...1st DCA 1961) (same). I do disagree with the conclusion that evidence that the vessel's crew placed a chair at the scene of the fall after it occurred was improperly admitted. It is certainly true that, in accordance with the familiar rule codified in section 90.407, Florida Statutes (1987), so-called remedial measures are inadmissible "to prove negligence." See City of Miami Beach v....

...Because the case must be retried, we feel it necessary to discuss the role of pre-accident, postmanufacture remedial measures. In this case, appellants' stepladder was manufactured in 1976. A new design was incorporated in 1982, but the accident did not occur until 1986. Section 90.407, Florida Statutes (1991), provides: 90.407 Subsequent remedial measures....

...We have located no Florida case expressly ruling upon the meaning of "event" as applied to a strict liability claim where a change was made after manufacture, but before the accident. However, persuasive federal cases lead us to conclude the accident is the "event." Section 90.407 and part of Federal Rule of Evidence 407 are almost identical....

...The Florida Legislature did not incorporate the last sentence of rule 407. However, Florida courts have engrafted this part of the federal rule onto the Florida statute. In Currie v. Palm Beach Co., 578 So.2d 760 (Fla. 4th DCA 1991), this court explained: In a negligence action, section 90.407, Florida Statutes (1988), clearly prohibits use of evidence of subsequent remedial measures as an admission of prior negligence....

...is admissible on the issue of the feasibility of taking precautionary measures. American Motors Corp. v. Ellis, 403 So.2d 459, 465 (Fla. 5th DCA 1981), rev. denied, 415 So.2d 1359 (Fla. 1982). Id. at 763. The Voynar court extended the application of section 90.407 and its "recognized exceptions" to strict liability cases....

...Harnischfeger Corp., 901 F.2d 42, 44 n. 1 (5th Cir. 1989); Chase v. General Motors Corp., 856 F.2d 17, 21 (4th Cir.1988). Id. at 1523. Therefore, design changes made after manufacture, but before the accident are not "subsequent remedial measures" and do not come within the purview of section 90.407. In the present case, the lawyers and trial court inserted section 90.407 into the case, then entered the thicket of "feasibility" contemplated by the last sentence of the federal rule. Nonetheless, before an exception may be employed, the statute that invokes it must be applicable. Here, the statute does not apply to the pre-accident design change. Thus, the feasibility exception to section 90.407 may not be utilized....

..." We agree. Had the latermodel stepladder been impossible to manufacture at the time the subject stepladder was manufactured, it would be irrelevant. Accord Ellis v. Golconda Corp., 352 So.2d 1221 (Fla. 1st DCA 1977) (holding, before the creation of section 90.407, a pre-accident design change not relevant to defectiveness of valve where the improvement was based on technology not available at the time of manufacture), cert....

...efendants concerning the damages that were awarded. [5] We note that the question may have been improper on other grounds as well. For instance, it is arguable that the question was improper because it dealt with a "subsequent remedial measure." See § 90.407, Fla....

...prove antecedent negligence. See Anot., 170 A.L.R. 7, 8 n. 1 (1947) and cases cited. See generally Reinhart v. Seaboard Coast Line R.R., 422 So.2d 41 (Fla. 2d DCA 1982), review denied, 431 So.2d 988 (Fla.), review denied, 431 So.2d 989 (Fla. 1983); § 90.407; 38 Fla.Jur.2d Negligence § 113 (1982)....

...is not admissible as proof of the defendant's negligence in failing to make the repairs or changes prior to the accident. City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla. 1955); City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964), and see Section 90.407, Florida Statutes (Supp....

...each bundle of roof panels in addition to the warning in the instruction manual. The trial court did not err in excluding evidence of these subsequent remedial measures as they related to either the negligence action or the strict liability action. Section 90.407, Florida Statutes (1983), clearly makes such evidence inadmissible in negligence actions. It provides: Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event. Unlike Section 90.407, Federal Rule 407 specifically states certain exceptions which can result in the introduction of such evidence in negligence actions....

...Apparently, shortly after this accident City and County employees removed or cut down the shrubs, bushes, trees, etc., that the Plaintiff claimed were a contributing cause of the accident. The Plaintiff wished to introduce evidence of these facts, which the Court ruled inadmissable pursuant to FLA. STAT. 90.407 as a subsequent remedial measure....

...Where counsel's conduct appears to have been calculated to communicate prejudicial evidence to a jury, a trial court's order granting a new trial should be affirmed. See Qualls v. Stancato, 450 So.2d 1197 (Fla. 1st DCA 1984). In a negligence action, section 90.407, Florida Statutes (1988), clearly prohibits use of evidence of subsequent remedial measures as an admission of prior negligence....

...Opelika Machine & Welding Company, 414 So.2d 1105, 1110 (Fla. 1st DCA 1982), pet. for rev. den., 426 So.2d 27 (Fla. 1983), we agree with the Fourth District Court of Appeal that the rule prohibiting introduction of evidence of subsequent remedial measures, codified as Section 90.407, Florida Statutes (1983), applies to strict product liability cases....

...brake was defectively designed and hence unsafe at the time of the accident, we find that the trial court properly excluded this evidence. [5] Even if we accept appellant's alternative contention that the evidence did not fall within the confines of Section 90.407, there was no abuse of discretion by the trial court in ruling the evidence inadmissible in view of Dr....

...1st DCA 1982), pet. for rev. den., 426 So.2d 27 (Fla. 1983). In Hartman, this court found that where subsequent remedial measures were *248 taken by a third party who was not a party to the litigation, the policy underlying the rule of exclusion now embodied in Section 90.407, Florida Statutes, was not offended....

...In Hartman, the defendant sought introduction of the evidence of subsequent remedial measures, a change in design, in an attempt to focus blame for the accident on the third party, who was not a party to the lawsuit, rather than itself. In such circumstances, the policies advanced by Section 90.407 are not implicated because the evidence does not tend to prove "negligence or culpable conduct" on the part of the defendant before the court....

...Here, on the other hand, the evidence of post-accident changes proffered by appellants was clearly designed to show "negligence or culpable conduct" on the part of Reynolds in the design or manufacture of the press. Thus, the evidence was offered for a purpose for which its use is prohibited under Section 90.407, which on its face applies, irrespective of the status of the party actually undertaking the remedial measures....

...rier. [2] Both Apache and Metal Container are subsidiaries of Anheuser-Busch. [3] Each of appellant's experts admitted, however, that their theory of causation was viable only if certain specific portions of Thursby's testimony were disbelieved. [4] Section 90.407, Subsequent remedial measures: "Evidence of measures taken after an event, which measure if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connectio...

...Defendants sought to mitigate the effect of this evidence on the negligence count by proferring an instruction that the evidence should be considered by the jury on the contract issue and not as evidence on the cause of action for negligence. The court refused to give the instruction, from Section 90.407, Florida Statutes (1981) which provides: Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event....

...As noted, the Keyes decision is contrary to the weight of authority. The dissent asserts that the kitchen manager’s statement should be excluded as evidence of subsequent remedial measures taken by Tandem. First, it should be noted that Tandem did not assert section 90.407, Florida Statutes (2009), as a basis for exclusion of this proffered testimony....

...It also is not clear that the kitchen manager’s statement consists of a subsequent remedial measure. Certainly the admission that Mrs. Gagnon choked on coleslaw is not a subsequent remedial measure. “Being more careful” may fall within the exclusionary basis pursuant to section 90.407, but it is not clear that the kitchen employees were being asked to take remedial measures as opposed to reminding the employees to follow preexisting procedures....

...e as used before the Murray incident. The Murrays offered the 1980 warning label in evidence during their case in chief, cross-examination of Almaden's Vice-President, and on rebuttal. The court, relying on the subsequent remedial exclusionary rule, section 90.407, Florida Statutes (1981), did not permit its introduction....

...Blue Ribbon Laundry, Inc., 364 So.2d 88 (Fla. 3d DCA 1978). [5] Calder challenges the propriety of the trial court's failure to give a jury instruction limiting the scope of evidence of remedial measures taken by Calder subsequent to the incident, § 90.407, Fla....

...Reversed and remanded for new trial. ANSTEAD, C.J., and SALMON, MICHAEL H., Associate Judge, concur. NOTES [1] Although the proffered evidence about the April and July incidents involved a showing of subsequent repairs, such evidence was not inadmissible under section 90.407, Florida Statutes (1983), because neither repair would have made the injury less likely to occur....

...airs or taken precautions prior to the accident. In that case a new trial was ordered because the court allowed testimony concerning post-accident changes in the meter box over which plaintiff tripped. The rule is found in the Florida Evidence Code, Section 90.407: Subsequent remedial measures....

...t, excluding certain evidence of post-manufacture, pre-accident discovery of the defective weld problem — and the possibility of consequent explosions — which had been found in some of the mowers. The basis for the ruling was the claimed effect of section 90.407, Florida Statutes (1991), which precludes evidence of "subsequent remedial measures" in a negligence case. Section 90.407 was invoked because the defective weld problem had been documented in notices, service bulletins, and correspondence concerning the defect which set forth corrective measures to mitigate the explosion risk. There is no doubt that the determination below was entirely, prejudicially erroneous. As the Fourth District has recently and squarely held, section 90.407 does not apply to the pre-accident evidence involved in this case....

...NOTES [1] Plaintiffs attempted to cross-examine the defense expert regarding the defective weld problem and Snapper's response thereto. The lengthy discussion at sidebar makes clear what the expert's testimony would have been, had the expert been allowed to answer. [2] Assuming arguendo that section 90.407 were applicable here, the statute provides that "[e]vidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable...

...Walt Disney World Co., 396 So.2d 769 (Fla. 4th DCA 1981). Glanzberg also challenges the trial court's exclusion of subsequent remedial measure evidence. Evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct. See § 90.407, Fla....

...Glanzberg argues she should have been allowed to introduce evidence of subsequent remedial measures to show dangerous condition. Because dangerous condition is an element of negligence in this case, we cannot escape the conclusion that the evidence Glanzberg sought to admit was offered for a purpose prohibited under section 90.407....

subsequent remedial measures was inadmissible under section 90.407, Florida Statutes (2015), because the purpose

...Nall, 302 So.2d at 782 ; see also Metropolitan Dade County v. Brill, 414 So.2d 626 (Fla. 3d DCA 1982). Finally, the DOT argues that the trial court abused its discretion when it permitted evidence of subsequent remedial measures to the floor at the weigh station in violation of section 90.407, Florida Statutes (1991)....

...have been excluded. We disagree. At a minimum, the disputed photograph was properly admitted under the impeachment exception to the subsequent remedial measures rule. See Morowitz v. Vistaview Apartments, Ltd., 613 So.2d 493, 495 (Fla. 3d DCA 1993); § 90.407, Fla....

...then to Mr. Harris. During trial, the plaintiff attempted to introduce evidence of the post-accident tree trimming. The trial court, however, ruled that this evidence constituted subsequent remedial measures and that it was inadmissible pursuant to section 90.407, Florida Statutes (1995)....

...ligent by failing to trim the trees. In essence, the plaintiff was attempting to establish that if FP & L would have trimmed the trees prior to the accident, the accident would not have occurred. This type of evidence is inadmissible pursuant to section 90.407, Florida Statutes (1995)....

...dence. See, generally, Michael H. Graham & Robert S. Glazier, Handbook of Florida Evidence § 407.1 (2d ed.1996); Charles W. Ehrhardt, Florida Evidence § 407.1 (1997 Edition). The remaining points raised by the plaintiff lack merit. Affirmed. . Section 90.407, Florida Statutes (1995), provides as follows: Subsequent remedial measures....

...Secondly, Roseman argues the evidence of Tuttle's adjustments to the door after the incident was admissible to impeach the director's testimony at trial that the door operated correctly. While evidence of subsequent remedial repairs may be admissible for impeachment purposes, see § 90.407, Fla....

...[1] Roseman also argues that Tuttle's testimony that he adjusted the door after the incident did not constitute evidence of a subsequent remedial repair because none of the adjustments would have made Roseman's injuries less likely to occur, and the evidence was not too remote. Therefore, it should have been admitted. See § 90.407, Fla. Stat. (1999); Donahue v. Albertson's, Inc., 472 So.2d 482, 484 n. 1 (Fla. 4th DCA 1985) (evidence of subsequent repairs admissible where the repair would not have made the injury less likely to occur). Section 90.407 states the rule "does not require the exclusion of evidence *522 of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or im...

...se of switch damage, thus offering direct evidence to support Donahue's theory of causation. See id. The same type of direct connection is not present in the testimony offered by Tuttle. Moreover, it is arguable that the evidence falls squarely into section 90.407's prohibition of introducing subsequent repairs....

...changes in policy and practices in the aftermath of the shootings, the County objected to the testimony on grounds of “subsequent remedial measures.” The deposition transcript was filed without any ruling on that objection, apparently made under section 90.407, Florida Statutes (2014)....

...The trial court did not, as urged, commit reversible error in excluding evidence of post-accident remedial changes at the accident scene. Such evidence was clearly inadmissible as a general rule, Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736, 738 (Fla. 3d DCA 1989); § 90.407, Fla.Stat....

...associates must follow when dealing with a customer suspected of shoplifting.”). 27 employed in the community.”). Just as the law doesn’t punish a company for taking subsequent remedial measures after an accident, see § 90.407, Fla....