Is evidence of shopping center’s subsequent remedial measure of hiring a security service admissible to prove causation of an armed robbery suffered by a tenant?

Posted in: Tort Liability, Trial Practice by Steven Vartabedian on

In McIntyre v .The Colonies-Pacific, LLC (filed 7/31/14) D065469, at his jewelry store located in defendant’s shopping center, plaintiff McIntyre and his daughter were pistol whipped by two men who restrained them and robbed the store; McIntyre recognized the perpetrators as looking suspicious when they were in the store a week earlier. A few months earlier, two other stores in the center had suffered robberies. McIntyre and a larger tenant had expressed concerns to defendant about the lack of common area security, to which defendant responded that it lacked a budget to provide such. Instead of providing security, defendant asked the local police department to step up its patrol of the center. However, after the McIntyre robbery, defendant hired a security service to provide an unarmed guard to patrol the common areas..

McIntyre sued defendant for negligence. A defense verdict was rendered by the jury. McIntyre appealed, contending the trial court abused its discretion by excluding evidence, under Evidence Code section 1151 (1151), of defendant’s subsequent remedial measure to prove negligence. He claimed the evidence was not offered to prove defendant’s breach of duty or negligence, but rather to prove causation. The Court of Appeal, Fourth Appellate District, Division One, found no abuse of discretion and affirmed.

The focus of McIntyre’s argument was that the term “negligence” as used in 1151 refers exclusively to the issue of breach of duty, and not the causation element of negligence. Because he offered the subsequent-remedy evidence for the limited purpose of proving causation, argued McIntyre, the trial court erred in refusing to admit the evidence. The appellate court thus examined the construction of the statute to ascertain the intent of the legislature so as to effectuate the purpose of the law.

In general, the 1965-enacted statute was viewed as codifying settled law promoting the public policy of encouraging remedial conduct. Specifically looking at well settled case law, the court cited the California Supreme Court case of Helling v. Schindler (1904) 145 Cal. 303. There the state high court reviewed a trial court’s admission of evidence that defendant had tightened the belt and sharpened the blades of a buzz planer where plaintiff claimed he was injured because the belt was loose and the blade were dull. The Supreme Court reversed. The Helling court explained that the only conceivable effect of the evidence was to impute to defendant’s an admission “that such condition was the cause of the accident.” (Id. At p. 312, italics added.) Thus causation is very much a prohibited element of proof by means of subsequent-remedy evidence.

McIntyre ignored Helling and relied on opinions discussing other exceptions to the general rule of inadmissibility. One case allowed admission where the conditions prior to the incident were disputed; the evidence was admissible for the limited proof of what condition existed prior to the incident. (Dow v. Sunset Telephone and Telegraph Company (1910) 157 Cal. 182.) The prior condition here was undisputed. Reliance on Dow was misplaced, as was reliance on other cases involving limited admissibility for purposes of proving contested issues other than negligence. Causation clearly is a part of the proof of negligence, as delineated in 1151.

I believe this published opinion is significant as reminding the courts of the core principles involved in excluding evidence of subsequent remedial measures under 1151. Counsel tend to conjure all sorts of theories of limited admissibility to try to get this evidence before a jury. But courts should be wary of admitting such evidence if, in the words of Helling, the only conceivable effect of the evidence is to impute to a defendant the admission of negligence–both breach of duty and causation are prominent elements of negligence as stated in 1151.

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