Facts and Procedural PostureRaven Industries (Raven), an electronics manufacturing plant, contracted with Garvin Group, the defendant, to strip, clean, wax, and buffer the floors of the plant. Plaintiff was an employee of Raven, and worked on the electrical assembly line on the plant floor. While Defendant was cleaning the floors, Plaintiff slipped and fell as she was walking through the plant. There were no warning signs or tape that indicated the floor was being treated and cleaned. She injured her wrist and brought a negligence suit against the contractor. At trial, she sought to introduce evidence that after the date of her fall, Raven directed Defendant to start using warning signs or tape to mark the areas of the floor being cleaned. This evidence was excluded as a subsequent remedial measure. The jury returned a verdict for Plaintiff with damages totaling $15, 000, but assessed fault against her and contractor at 80% and 20%, respectively. Therefore, the total judgment was for $3,000, and Plaintiff timely appealed.

IssueWhether evidence of a subsequent remedial measure taken by a non-party is admissible in a negligence action?

RuleThe general prohibition on admitting a subsequent remedial measure into evidence does not apply when the measure was taken by a non-party to the lawsuit.

HoldingThe Appellate Court reversed and remanded the Circuit Court’s decision. Because the remedial measure was taken by a non-party, the public policy behind the rule is not implicated. Since the implementation of remedial measures by a non-party do not expose that party to liability, the public policy favoring safety improvements is satisfied.

AnalysisGenerally, evidence of subsequent remedial measures is inadmissible in court to prove negligence or culpable conduct in connection with an event. However, this evidence is admissible for other purposes such as impeachment, or if controverted, as proof of ownership, control, or feasibility of precautionary measures. Pollard v. Ashby, 793 S.W.2d 394, 401 (Mo. Ct. App. 1990). The public policy behind subsequent remedial measures is to encourage parties to make remedial measures in order to prevent further injuries from occurring. If such evidence could be used against a party, it would dissuade parties from making improvements.

Here, the subsequent remedial measure was not undertaken by the defendant; it was undertaken by Raven, the manufacturing plant, which is a non-party to the lawsuit. Since the remedial measure will not expose Raven to liability, they are not discouraged from taking remedial measures and the public policy behind the rule is not implicated. Therefore, the exclusion of evidence relating to subsequent remedial measures should be limited to those taken only by the defendant. Additionally, each Federal Court of Appeals has addressed this issue under rule 407 of the Federal Rules of Evidence and concluded that subsequent measures taken by a non-party are not excluded. As an issue of first impression in Missouri Courts, the court held that the rule against the admission of subsequent remedial measures will not apply to measures taken by non-parties.