Premises Liability: Subsequent Remedial Measures

McIntyre v. Colonies-Pacific, LLC, (Fourth District, July 31, 2014) 228 Cal.App.4th 664, 175 Cal.Rptr.3d 440, 14 Cal. Daily Op. Serv. 8687, 2014 Daily Journal D.A.R. 10,125

A jewelry store owner who was held up at gunpoint by robbers and severely pistol whipped, filed suit against the owners of the shopping center in which his store was located, asserting negligence and premises liability theories. The plaintiff alleged that prior to the incident two stores had been robbed at gunpoint and that several times prior to the incident he had expressed concern about the lack of security to an employee of the defendant. He also alleged that when the defendant hired an unarmed guard to patrol the common areas following the subject incident, there were no more armed robberies over a period of five years.

Prior to trial the defendant moved to exclude any evidence of subsequent remedial measures under Evidence Code section 1151, including the hiring of the security service. The plaintiff opposed the motion, arguing that the evidence was not being offered to show a breach of care, but rather, to show the lack of a security patrol was the cause of the accident. The trial court granted the motion, and excluded the evidence.  The jury found the defendant was negligent, but that its negligence was not a substantial factor in the plaintiff’s damages. The court of appeal affirmed, holding that the trial court had not abused its discretion in excluding the evidence, and rejecting the plaintiff’s argument that the defendant’s had opened the door to its admission during opening statement:

Whether the issue is couched in terms of the due care or causation aspect of a negligence cause of action, admission of evidence that Colonies subsequently hired a security service, which improved safety, would discourage others similarly situated from undertaking such measures, an outcome that would thwart public policy. Even though some exceptions to the rule of exclusion have been carved out, “courts and legislatures have frequently retained the exclusionary rule in negligence cases as a matter of ‘public policy,’ reasoning that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident has occurred.”

Alternatively, the McIntyres contend the subsequent remedial measures evidence should have been admitted for rebuttal purposes after the Colonies’s attorney “opened the door” during opening statement by advising the jury that McIntyre had recently renewed My Jeweler’s lease. The McIntyres assert the statement gave the jury the impression “McIntyre was choosing to stay in the very same location that he claimed was unsafe,” thereby “damning … his credibility.”

The court, however, had discretion to exclude the evidence of subsequent remedial measures on the ground counsel’s brief statement was not evidence. … Further, the court appropriately instructed the jury as follows: “What the attorneys say during the trial is not evidence. In their opening statements and closing arguments, the attorneys talk to you about the law and the evidence. What the lawyers say may help you understand the law and the evidence, but their statements and arguments are not evidence.”

Under article VI, section 13, of the California Constitution, “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of … the improper admission or rejection of evidence, … unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” “ ‘A miscarriage of justice … occurs … when it appears reasonably probable that were it not for the error a result more favorable to the appellant could have been obtained.’ [Citation.] ‘Prejudice is not presumed and the burden is on the appellant to show its existence.’ ” …

We are satisfied that the court’s instructions prevented any prejudice to the McIntyres. … “We presume the jury would have followed such direction.”