How can one overcome the inadmissible feature associated with offering post-accident repairs to escape liability at the summary judgment stage? It is well-settled that evidence of subsequent remedial measures generally is not admissible to prove that the subject event was caused by negligence or culpable conduct, pursuant to N.J.R.E. 407. However, the Rule permits that evidence of subsequent remedial conduct may be admitted to prove other issues, often times ownership, control, or the feasibility of precautionary measures.
Recently, in the matter of in the matter of McAllister v. Scarborough Properties, et al., ATL-418-17, Defendants, Harbour Cove South Condominium Association, Inc., Harbour Cove Condominium Association, and Harbour Cove North Condominium Association, represented by Callahan and Fusco, LLC, moved for summary judgment in the Superior Court, Atlantic County, before the Honorable James P. Savio, J.S.C. In McAllister, the plaintiff tripped and fell over a manhole cover located in the middle of a road bordering an overflow parking lot purportedly owned by a co-defendant, while attempting to the cross the street over to the Doc’s Place Restaurant, another named co-defendant. The approximate end of the street where the subject fall occurred encircled the Harbour Cove Condominiums.
In Defendants’ motion for summary judgment, it was contended that the written discovery and deposition testimony failed to provide any evidence that the Harbour Cove Condominiums had any interest or maintenance responsibility over the subject area. To the contrary, the record indicated that the parking lot’s ownership extended to the subject area, sharing responsibility with another co-defendant for a subsequent repair made where the subject accident occurred. Furthermore, it was asserted that there was evidence gathered through supplemental interrogatories showing two co-defendants’ performance of subsequent repairs over the subject area, made a day and a half following the accident, with costs split between them.
Callahan and Fusco successfully argued that there was no evidence on record to attribute ownership or control to Harbour Cove Condominiums, nor was Harbour Cove Condominiums ever found responsible for the subject portion of the roadway, and the Court granted Defendants’ summary judgment motion on behalf of Harbour Cove Condominiums – essentially holding that there was no genuine issue of material fact to suggest Harbour Cove Condominiums possessed any responsibility or duty to the plaintiff with respect to the maintenance or repair of the subject area. While evidence of feasibility of subsequent repairs can result in the preferred feasibility of a summary judgment win, that outcome is not always viable. Nonetheless, the rule and its exceptions exist to offer a bridge between inadmissible and admissible evidence for various purposes that, when applied properly, can result in a successful defense.