Bleacher Report: Court Of Appeals Of North Carolina Finds Subsequent Remedial Measure Evidence Was Properly Precluded

Like its federal counterpart, North Carolina Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if those issues are controverted, or impeachment.

So, let’s say that a six year-old is injured when he falls through the bleachers at a high school. And let’s say that the school board thereafter adds a riser plate to the bleachers. Evidence of this subsequent remedial measure will be inadmissible under Rule 407 according to the recent opinion of the Court of Appeals of North Carolina in Davis ex rel. Gholston v. Cumberland County Bd. of Educ., 2011 WL 6365163 (N.C.App. 2011).

In Davis ex rel. Gholston, Tyson Davis, who was six years old at the time, was severely and tragically injured when he fell through bleachers located on the premises of the Cumberland County Board of Education’s Seventy–First High School. Betty Gholston, on her own behalf and as guardian for Tyson Davis, thereafter brought a negligence action against the Board, which moved for summary judgment. The trial court granted the Board’s motion 

[b]ecause the Board presented evidence that it was not negligent—in that the bleachers complied with the North Carolina Building Code…and it had no notice of any prior problems with the bleachers—and because plaintiff presented no admissible evidence that a reasonable and prudent school board would have done anything different with respect to the bleachers….

Gholston therafter appealed, claiming, inter alia, that the trial court erred by precluding her from presenting evidence of the Board’s response to an interrogatory question asking the Board to describe all actions “that were taken in response to the accident.”  The Board objected that this interrogatory called for evidence of a subsequent remedial measure contrary to Rule 407, but nonetheless responded:

The Court of Appeals of North Carolina agreed with the trial court’s decision to exclude this response, finding that “[t]he Board’s interrogatory answer falls squarely within Rule 407—plaintiff is relying upon the subsequent measures to prove the Board’s negligence.”

-CM