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Can a person's fixing of defective property be used against him?


When things break, many Tennessee residents take action to fix them. This may be particularly true if the thing that broke injured someone else. Injured parties as well may want the dangerous property condition to be fixed immediately so that others are not hurt by the same item.

In a premises liability lawsuit, however, there can be questions about the admissibility of evidence of a person's actions to fix a dangerous property condition. Oftentimes injured persons want to use this type of evidence to show an admission on the part of the negligent person that the condition was dangerous and needed to be fixed to avoid injury to others.

There are specific rules of evidence that apply to control what is and is not admissible when it comes to "subsequent remedial measures," or actions that are taken after an injury to fix something. Typically, these subsequent measures are not admissible to prove someone's negligence in connection with the initial injury itself. Accordingly, someone typically cannot introduce evidence of the measures taken by the negligent person, which would have made the initial event less likely to occur.

As with most things, however, there are exceptions to the general rule that may apply in particular cases. For instance, if the negligent person is disputing whether he or she owned the property or was in control of the property, the injured party may be able to introduce evidence of subsequent measures that were taken to prove ownership or control. Similarly, if the negligent party argues the measures that could be taken were not feasible, the evidence of those measures can be introduced into evidence.

Finally, subsequent measures can typically be introduced into evidence to impeach a negligent person's testimony. This means that the evidence can be used to challenge the person's credibility, which can be important to discount that person's testimony about the incident.

When measures have been taken to fix a dangerous property condition, individuals should understand whether those measures may be admissible in evidence at trial. The injured person can then prepare accordingly to prove the case against the property owner.

Source: Tennessee Courts, "Rule 407: subsequent remedial measures," accessed on Feb. 7, 2015

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