Brockney v. Sampson Supermkts

Opinion

Brockney v . Sampson Supermkts CV-94-569-SD 09/21/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Denise Brockney; Gary Brockney

v. Civil N o . 94-569-SD

The Sampson Supermarkets, Inc.

O R D E R

Defendant has filed a motion in limine regarding subsequent

remedial measures. Document 1 1 . The motion states that

plaintiffs' counsel "has indicated" his probable objection. Id. at 2. 1

1. Background

This diversity action arises from an incident which occurred

on June 2 3 , 1993, in the parking lot of a supermarket located in

Ossipee, New Hampshire. Defendant, the Sampson Supermarkets,

1 In its final pretrial order of September 1 1 , 1995, the court, having been advised that defendant would file the instant motion, directed that the motion "be furnished opposing counsel in such timely fashion that both the motion and any objection thereto are to be filed by the close of business on September 2 0 , 1995." Document 1 0 , at 2 . As of this writing, no objection has been filed by plaintiff. Inc., was in possession and control of the supermarket premises. Plaintiff Denise Brockney alleges that she sustained injury when a wheel of the shopping cart she was using caught in the pavement near the store entrance and caused her to fall. Approximately one month after the accident, this entrance area was repaved with asphalt.

2. Discussion

Rule 4 0 7 , Fed. R. Evid.,2 makes clear that evidence of

subsequent remedial measures "to prove negligence or culpable

conduct" is inadmissible, although such evidence may be offered

for other purposes such "as proving ownership, control, or

feasibility of precautionary measures, if controverted, or

impeachment." Id. See Clausen v . Sea-3, Inc., 21 F.3d 1181,

2 Federal Rule of Evidence 407 states, When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

2 1191 (1st Cir. 1994). 3 The defendant does not here contest ownership, control, or feasibility of precautionary measures, and, accordingly, the motion in limine must be granted.

3. Conclusion

Defendant's motion in limine is granted, and plaintiffs are

barred from offering or attempting to offer evidence as to the

subsequent repair of the premises on which the alleged accident

occurred.

SO ORDERED.

Shane Devine, Senior Judge United States District Court September 2 1 , 1995

cc: Gary P. Westergren, Esq. Robert C . Dewhirst, Esq.

3 The difficulties arising from application of the "impeachment loophole" require trial judges to consider carefully whether even such evidence should be declared inadmissible under the "unfair prejudice" provision of Rule 403, Fed. R. Evid. Harrison v . Sears, Roebuck & Co., 981 F.2d 2 5 , 31-32 (1st Cir. 1992).