Premises Liability

August 3, 2005

Rule 407 – Subsequent Remedial Measures

Subject to several exceptions, Rule 407 prohibits the introduction into evidence of subsequent remedial measures. The Third Circuit Court of Appeals has just joined several other circuits in holding that the exclusionary rule does not apply when the remedial measures are made by a third party.

Judge Smith wrote that “The rule recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective.” He went on to say that “this policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit.” Judge Smith explained that every federal circuit to address the issue — the 1st, 4th, 5th, 7th, 9th and 10th — has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a nonparty.

April 1, 2005

Social Host Liability

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has released another important tort opinion, Biscan v. Brown.

This opinion examined several important questions, including “whether an adult who hosts a party for minors and knows in advance that alcohol will be consumed has or may voluntarily assume a duty of care towards the minor guests.” The Court held that the defendant adult host had such a duty of care even though he did not furnish any alcohol.

The Court also held that the “trial court did not err in excluding evidence regarding the minor plaintiff’s prior alcohol-related offenses and her prior experience with alcohol and that the trial court did not err in determining that the plaintiff’s sister was not at fault as a matter of law pursuant to Tennessee’s statutory shield for furnishers of alcoholic beverages.”

March 1, 2005

Slip and Fall Cases – Constructive Notice

by The Law Offices of John Day, P.C.

In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court held that plaintiff may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence. This decision is an express adoption of what used to be called the “method of operation theory” of proving constructive notice. The owner, a third person, or nature may cause the condition. You may read the text of the opinion by clicking here.

I do not like phrase “method of operation theory;” it sounds as if the defendant must knowingingly engage in practices that create a risk of harm. That is simply not correct.

The better label is the “reoccurring risk of injury theory.” In other words, plaintiff must demonstrate that defendant, a third person or nature regularly created some condition that posed a risk of injury to third persons. For instance, a plaintiff who fell in a grocery store could met her burden of proving notice by proving that she slipped on a liquid substance that being given away for test consumption as a store promotion several isles away. She could prove actual notice of the substance on the floor, true constructive notice, or “risk of reoccurring injury” notice; i.e. that when the store had such give aways it routinely had spills nearby with such frequency that constructive notice should be found by the factfinder.