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Question 1

What is the rationale for extrinsic policies?

Answer 1

You don’t want people to be reluctant to do something that society deems to be good just because they’re worried it will result in liability. I.e.: like fix a problem, get insurance, offer to pay medical bills

Question 2

What are extrinsic policies?

Answer 2

Evidence exclusions based on policy

Question 3

What are the five extrinsic policies?

Answer 3

• Subsequent remedial measures
  – offers to compromise and statements
  – offers to pay and payment of medical expenses
  – Plea offers and related statements made during plea negotiations
  – liability insurance

Question 4

What is the extrinsic policy of subsequent remedial measures?

Answer 4

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of those subsequent measures is not admissible to prove: negligence, culpable conduct, a defect in a product or its design, or a need for warning or instructions.

This evidence can be admitted for other purposes like impeachment, or if these things are disputed, to prove: ownership, control, or the feasibility of precautionary measures

Question 5

What is the rationale behind the extrinsic policy of subsequent remedial measures?

Answer 5

The court wants to give the defendant an incentive to fix dangerous conditions without worrying about litigation as a consequence

Question 6

What are the purposes under subsequent remedial measures that cannot be admitted?

Answer 6

– negligence
– product liability cases
– warnings

Question 7

If a tenant slips and falls on a rotten stair in the landlord’s building, and nine days later the landlord repairs the step. If the tenant sues the landlord for negligence and at trial attempts to show that the landlord fixed the stair in order to prove the landlord was negligent for not repairing it earlier, would that be allowed?

Answer 7

No it would be excluded because it is offered to show negligence, and that is an inadmissible purpose for admitting subsequent remedial measures

Question 8

If a plaintiff sues a car manufacturer for injuries from an airbag in an accident, and the plaintiff’s attorney asked the defendant on cross if after the plaintiff was injured they stopped making airbags out of broken glass. If the question was meant to suggest that the corporation previously used a defective design at the time of the plaintiff’s accident, would that be allowed?

Answer 8

No, because it is used to show a defect in a product or its design, which is an inadmissible purpose under the subsequent remedial measures

Question 9

Is a subsequent remedial measure taken by D allowed to be offered if it was meant to show that there was a need for a warning or instruction?

Answer 9

No

Question 10

If a plaintiff sues a defendant who is a lawnmower manufacturer for his injuries because no one told him that the way he was using it was dangerous. If on the cross examination of the defendant, the plaintiff’s attorney asked if after the plaintiff was injured, the defendant added a warning label to the lawnmower, would that be allowed?

Answer 10

No because the plaintiff is using it to suggest that the defendant should have put a warning on sooner, and if he had the plaintiff would not have been hurt. This is an inadmissible purpose under subsequent remedial measures

Question 11

What are admissible purposes under subsequent remedial measures?

Answer 11

– impeachment

– to settle a dispute to prove ownership/control/feasibility of precautionary measures

Question 12

Is every type of subsequent remedial measure barred from being introduced?

Answer 12

No, it is only offered if it is to show negligence, culpable conduct, product or design defect, or the need for a warning/instruction

Question 13

In a slip and fall suit against the landlord, where on direct of the landlord defence counsel asks why the landlord didn’t think he was at fault, and the landlord says it wasn’t his stairway, then on cross the plaintiff’s attorney asked if the landlord fixed the stair after the accident, is that allowed?

Answer 13

Yes because there is a dispute about who owns the stairway, so proving the defendant fixed a stair 10 days after an accident is relevant to prove who owned the stairs. If the stairs weren’t his, why did he fix them? If it looks like a 403 issue will come up, the judge can issue a limiting instruction

Question 14

In order to use impeachment of a witness as a reason for introducing a subsequent remedial measure, what is the important thing to remember?

Answer 14

That the witness being impeached had to have been personally involved in the remedial measure. He either knew about it or had a hand in it

Question 15

In a slip and fall case if the defendant’s attorney asked the defendant on direct if he inspected stairs after the fall, and the defendant says yes they looked fine, then on cross the plaintiff’s attorney asks if 10 days after the accident he repaired the stairs, is that OK?

Answer 15

Yes because the defendant said on direct that the stairs looked fine, so if that was true there would be no need to repair them, and since he did repair them after the accident, that casts doubt on his testimony and calls his credibility into question. So this would be admissible as impeachment

Question 16

If the defendant’s attorney examines the defendant’s employee and asked him if he inspected stairs that someone slipped on, and the employee says they looked fine, but then the next day the defendant fixed the stairs, could the plaintiff’s attorney on cross ask why the defendant fixed the stairs?

Answer 16

No, because you can’t use that to impeach the defendant’s testimony since it wasn’t the defendant that said the stairs looked fine. The defendant and his employee could’ve disagreed about whether the stairs looked OK

Question 17

If an attorney asked the defendant if he inspected the stairs right after an accident, and the defendant says he did and that they couldn’t have been safer, what does that suggest?

Answer 17

That it wasn’t possible to make the stairs any safer, so now whether the stair could’ve been safer is a disputed fact, and information is relevant about that. So the attorney can ask why the defendant fixed the stair the next day if it couldn’t have been safer

Question 18

What is the deal about timing in relation to subsequent remedial measures?

Answer 18

The rule only applies to SUBSEQUENT remedial measures, not PRECEDENT remedial measures

Question 19

Is it possible to prove that a defendant took inadequate measures before an accident in order to show his negligence?

Answer 19

Yes, because that would not be barred by the subsequent remedial measures rule since the accident that wasn’t taken happened before an accident

Question 20

In a slip and fall case is it proper to ask the defendant if two weeks before the accident he tried to repair the step by putting duct tape on it?

Answer 20

Yes, because it happened before the accident, so it wouldn’t be barred by subsequent remedial measures

Question 21

What is the reason that timing is so important for subsequent remedial measures?

Answer 21

Because a person will not be deterred from fixing something before an accident happens due to litigation, so the rule only applies to subsequent measures, since that is what someone might be deterred from doing

Question 22

What does it mean to say that subsequent remedial measures only apply to the owner?

Answer 22

Only the owner of property can be deterred from taking remedial measures because of litigation. This means that a subsequent remedial measures taken by a third-party is not included

Question 23

In a slip and fall case where the plaintiff calls a second tenant that lived in the landlord’s building and asks what that tenant did after hearing about the plaintiff’s fall, and that tenant says he repaired the step himself because he didn’t want to fall, would that be allowed?

Answer 23

Yes because the subsequent repair was done by a third-party that wasn’t the owner. Subsequent remedial measures only bars information about a subsequent repair that is done by the owner. This shows it was easy to fix the stair if the defendant had decided to do it

Question 24

How does subsequent remedial measures only apply to actions that would have avoided the injury?

Answer 24

Only measures that, if taken by the defendant, arguably would have made an earlier injury or harm less likely to happen are excluded. There must be a relationship between the subsequent fix and the injury

Question 25

In a slip and fall case on the cross examination of the defendant, if the plaintiff’s attorney asks if two weeks after the accident the defendant finally put security bars on the windows, is that permitted?

Answer 25

Yes, because it has nothing to do with the injury in question, so subsequent remedial measures wouldn’t apply to bar that information

Question 26

If a plaintiff sues McDonald’s for a burn from spilling hot coffee on himself, then at trial he tries to show that 10 days later, McDonald’s ordered that all coffee machines lower the temperature 40°, would that be allowed?

Answer 26

No, because of the ban on subsequent remedial measures. Evidence of a later measure to lower the temperatures that if taken earlier would have made the injury less likely are not allowed

Question 27

If a restaurant chain were to argue in a case that a plaintiff was badly burned on coffee that the chain was just a franchisor and didn’t have control over conditions in individual stores, could a plaintiff introduce evidence that the chain ordered, after the accident, a 40° lowering in coffee temperatures?

Answer 27

Yes, that wouldn’t violate subsequent remedial measures since the dispute is about control. Here the franchisor disputed control and ownership at the store that the plaintiff was injured, so now the evidence is available to settle that dispute

Question 28

If a plaintiff was burned by McDonald’s coffee, and at trial attempts to offer evidence that 20 days later McDonald’s put a warning on their coffee cups about the heat, would that be allowed?

Answer 28

No, because you can’t use evidence of subsequent remedial measures if you are trying to show a need for a warning

Question 29

If plaintiff was burned by McDonald’s coffee, and at trial attempts to offer evidence that 10 days afterward a 16-year-old trainee at the restaurant was worried he would burn himself and turned down the temperature of the coffee maker?

Answer 29

Yes, that would be allowed because this policy doesn’t apply to third parties that make repairs on their own. This teenager is not a party, and he attempted to lower the temperature because of concern for his own safety, not in his capacity as an agent for the company