Oops, someone got injured on your property. But will fixing the danger make you look culpable?

It’s something any property owner dreads, whether it’s their home or their business. Nothing seems amiss, and then all of a sudden, someone got hurt on your property. Maybe a slip and fall, a weak step, a sharp edge, or poor electrical work. You feel bad that someone is hurt, and want to do the right thing. You certainly don’t want anyone else getting hurt, either. But you also fear the possibility of a lawsuit for the injury.

Let’s say that in taking a look at what happened, you realize that there is a danger. Perhaps a condition which caused the floor to be frequently wet and slippery, or a nail protruding from a floor board and just waiting to be stepped on. On the one hand, you feel that the person who was injured should have been more careful. And perhaps, they should have been. But you also know that this is your property, you know it best, and you have a responsibility to make it safe to visitors. You find that the dangerous condition can be fixed, or minimized, or at least that people can be warned.

Foot with black high heel about to step on a banana peel on the ground. Photo by Mats Silvan.

You know that fixing the dangerous condition is the right thing to do. But you also worry that if you fix the danger, does this make it look like the injury was your fault? Does it make everyone around you think that you had known about the danger before, but not bothered to correct it until someone got hurt? Or, if you dispute that you were responsible for the injury, does fixing the problem implicitly acknowledge some level of responsibility on your part?

Rule 407 of the Federal Rules of Evidence addresses subsequent remedial measures – where someone fixes a hazardous condition on a property after an accident or injury occurs. Rule 407 provides that ‘when measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or design; or a need for warning or instruction’.

So basically, where someone gets hurt on property and later sues the owner for allowing a dangerous condition to occur; and the owner fixes the dangerous condition; the injured party cannot use the subsequent repair to prove that the property owner knew about the condition but did not fix it earlier. This Rule is intended to avoid a situation where a property owner is afraid to fix a dangerous condition because their doing so might be used against them later. This is known as a public policy consideration – a rule for the public good.

Sign on a post saying “Dangerous Condition – Do Not Climb On or Over Railing – Don’t Even Think About It!”

Note that evidence of subsequent repairs may be admissible in court in other contexts – including impeachment (discrediting) of a witness, proving ownership or control, or proving the feasibility of safety measures.

So, in this situation; go ahead and make subsequent repairs, before you or someone else gets hurt!

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Please note that the above is offered for educational purposes, and as a means of encouraging intellectual curiosity about the law. The information presented may not take into account every exception, variation, or complication which could apply to someone’s legal matters. Accordingly, nothing in this post or blog is ever intended as, nor should be construed by or relied upon by anyone, as legal advice. If you need legal advice, please consult an attorney who can give you assistance specific to your needs.

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