Palmiter v. Monroe County Board of Road Commissioners

387 N.W.2d 388, 149 Mich. App. 678
Michigan Court of Appeals·Decided March 17, 1986·No. Docket 77959·Published·Cited by 8 cases

Opinions

Wahls, P.J.

Plaintiff was injured in a single-car accident on June 16, 1976, and rendered a paraplegic. He commenced an action to recover damages arising out of the accident and claimed that defendant or its employees (1) breached their duty to maintain the road in a reasonably safe condition and fit for travel, and (2) negligently operated or maintained a tanker truck used to spray liquid [682] calcium chloride on unpaved roads. Following trial in October and November, 1983, the jury returned a special verdict in favor of defendant. Plaintiffs motion for a new trial was denied, and he appeals as of right. We affirm.

Plaintiff was driving north on Lewis Avenue, a two-lane asphalt road in Monroe County, shortly before 9:00 a.m. After passing another northbound vehicle in a 35 mph zone, he lost control of his car, which left the road, crossed a residential yard, continued across an open creek, hit the north embankment and catapulted in the air before coming to rest.

Plaintiff contends that the accident resulted from a slick road surface due to significant liquid calcium chloride deposits left there by a road commission employee, Milivoy Knezevich, who had been spraying the liquid on unpaved roads abutting Lewis Avenue. Defendant denies that the calcium chloride on the road created a slippery condition and attributes the accident to plaintiffs excessive speed.

I

Plaintiff argues that the trial court erred in excluding evidence that defendant’s employees spread sand on Lewis Avenue soon after the accident. In denying plaintiffs motion for a new trial, the court concluded that its:

"* * * ruling prohibiting introduction of evidence of subsequent remedial measures undertaken by the Road Commission was soundly based upon MRE 407, and was consistent with the public policy encouraging safety related conduct following an accident; no prejudice or jury confusion was occasioned by exclusion of this evidence”.

A

The issue of the admissibility of evidence of [683] subsequent remedial measures first came before the trial court on defendant’s motion to limit discovery, filed on August 8, 1977. The motion was denied because of the possibility that the evidence might be admitted at trial for purposes constituting exceptions to the general rule of exclusion. On February 22, 1982, defendant filed a motion to exclude the evidence pursuant to MRE 407. The court granted the motion, noting that ownership, control and feasibility of precautionary measures was not controverted and that no one had testified to the nonexistence of sand on the roadway or made other statements that would be directly impeached by evidence of the sand. The court did, however, leave open the way for plaintiff to bring a future motion and lay a clear foundation for an exception to the rule.

On October 13, 1982, plaintiff filed a motion to admit two deposition transcripts in their entirety, including statements regarding spreading sand. Plaintiff wished to use the statements to impeach the position of defendant and the witnesses as to the amounts and location of calcium chloride on the road and that the road was not slippery. The court denied the motion and certified a final order. This Court denied leave to appeal on March 30, 1983, and the Supreme court did likewise on May 17, 1983. 417 Mich 994 (1983).

At trial, plaintiff was limited to using edited versions of the two deposition transcripts. He also was unable to introduce photographs of the road taken after the sand was spread.

B

MRE 407, captioned "Subsequent Remedial Measures”, states:

[684] "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.”

Plaintiff now contends that the above rule is inapplicable to the instant case, although, at the trial level, he conceded that evidence of the sand spreading was inadmissible to prove negligence and, in effect, conceded that MRE 407 applied. Nevertheless, because the applicability of the rule is a necessary starting point for proper consideration of the trial court’s rulings, we will consider plaintiff’s arguments.

Bernard Bauer, the district foreman for the road commission, testified at his deposition that the road was not slippery after the accident but he ordered that sand be spread to prevent a slippery condition from developing. Plaintiff now relies on this testimony in arguing that the sand spreading was not a subsequent remedial measure because, if it had been spread prior to the accident, it would not have made the accident "less likely to occur”. However, we think it proper to look at plaintiff’s intended use of the evidence of sand spreading. Plaintiff’s position generally is that the sand spreading tends to prove that the road was already slippery. Furthermore, were plaintiff to impeach Bauer with the evidence, the implication would arise that Bauer knew it was slippery. We believe that for these reasons MRE 407 is applicable to this case. Cf., Grawey v Genesee County Bd of Road Comm’rs, 48 Mich App 742; 211 NW2d 68 (1973) (general rule prohibiting evidence of subse[685] quent repairs applied where defendant alleged that road was resurfaced on scheduled basis, not because of needed repairs).

Plaintiff asserts that defendant would have spread sand on the road in any event, because it had a duty to maintain the roads in a condition reasonably safe and fit for travel and because it would seek to reduce future claims which would increase insurance costs. For these reasons, plaintiff argues that rule 407 is either inapplicable or at least should not be interpreted to exclude evidence when offered for some purpose other than proving negligence or culpable conduct. Plaintiff’s argument is not a new one. Our Supreme Court, acknowledging criticism of the subsequent repairs exclusion, has stated,

"It goes without saying that market forces (the desire to prevent future costly lawsuits) and a manufacturer’s duty to warn, generally, * * * will operate to encourage the adoption of appropriate remedial measures. The proposed extension of an evidentiary rule beyond its intended meaning will not provide any significant further encouragement of safety activities.” Downie v Kent Products, Inc, 420 Mich 197, 211-212; 362 NW2d 605 (1984), modified on other grounds 421 Mich 1202 (1985).

Free access — add to your briefcase to read the full text and ask questions with AI

Palmiter v. Monroe County Board of Road Commissioners, 387 N.W.2d 388, 149 Mich. App. 678 (Mich. Ct. App. 1986).

387 N.W.2d 388 (Palmiter v. Monroe County Board of Road Commissioners) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Ellsworth v. Hotel Corp. of America
600 N.W.2d 129 (Michigan Court of Appeals, 1999)
Bland v. Davison County
1997 SD 92 (South Dakota Supreme Court, 1997)
Heshelman v. Lombardi
454 N.W.2d 603 (Michigan Court of Appeals, 1990)
Bonelli v. Volkswagen of America, Inc
421 N.W.2d 213 (Michigan Court of Appeals, 1988)
Palmiter v. Monroe County Board of Road Commissioners
387 N.W.2d 388 (Michigan Court of Appeals, 1986)