A Pro-Active Examination Of Pennsylvania’s Subsequent Remedial Measures Rule for Today’s Savvy Claims Professional

By: Steven G. Leventhal

All too often, in the immediate aftermath of an accident leading to severe personal injury of a business invitee or employee, the well natured insured property owner (or his risk managers’) first knee-jerk reaction is to immediately “fix” the problem. After all, we have all been taught from a very early age that “an ounce of prevention is worth a pound of cure.” More troubling is the fact that in the aftermath of an accident, an owner/occupier of land can no longer claim that he lacked actual notice of a latent hazard. Should others subsequently suffer the same fate as claimant number one- the insured is certainly going to be held liable especially in the eyes of the fact finder for its unexcused failure to rectify the hazard within a reasonable time period. Accordingly, I leave the savvy claims professional with a new twist to the old maxim. Perhaps now better stated: “An ounce of PRESERVATION is worth a pound of cure.”

Included in the totality of concerns over news of the recent accident, the insured must be wary of the rules pertaining to Spoliation of evidence codified at PA R.E. Section 401.09. We learn via this rule that Spoliation is simply defined as the “failure to preserve evidence for examination and inspection.” Schroeder v. Comm.. Dept. of Transportation., 710 A.2d 23 (Pa. 1998). Accordingly, it may greatly behoove the claims professional when receiving information of a new B.I. claim to make both active and immediate inquiry as to the cause of the accident and the insured’s immediate plans in response thereto to rectify and/or preserve the same.

In a product defect claim for example, failure of a plaintiff in ownership or control of the product to preserve same in the aftermath of an accident can likely be fatal to his/her claim should the item in question not prove available for the inspection rights of the defense.

It is the rare case indeed where a defendant can equally destroy the proofs of a defect through its unilateral actions and not expect some sort of future sanction- even if it winds up in the form of a disastrous “negative inference” at time of trial. Obviously, the key to the post accident claim for the defense is “preservation.” Should the hazard/defect at issue not be something tangible that can be properly stored until the tolling of the statute, (usually two [2] years in this jurisdiction from the date of accident) then great care must be taken to photo-document the area in question before repairs are instituted- especially repairs undertaken prior to an inspection made by opposition counsel or his/her experts.

In this regard, all surveillance films (be they digital or in any other format), should immediately be preserved from any camera within view of the accident pointing in the direction of the location of the accident. This directive is equally important when film exists which does not capture the incident at the appointed time- as proof of “nothing” can often be found to be just as strong to a fact finder so long as it can be properly authenticated later by the insured’s designee. (To this end great care should be made to identify witnesses and all those in the chain of possession/custody of the tapes and to painstakenly document both the cell and home numbers not only of the reviewing designee who pulled the tape- but of those likely to know where that person might wind up two years from the date of loss when litigation is finally filed and that employee/witness is inevitably long gone from the jurisdiction.) In the meantime, a well crafted visible warning sign or caution tape/cones must be employed if closing down the subject area does not serve as a viable alternative until the area at issue can be inspected and/or be made safe without need for larger or permanent repairs.

Defense Counsel’s involvement in the claim usually does not occur until after suit has been filed nearly two years post loss. If the claims professional has been given information regarding post accident changes to the alleged hazard- this informational transfer is essential to be shared with defense counsel before irrelevant defenses are raised and filed in the New Matter of counsel’s responsive pleadings. Denials raised averring lack of control, ownership, or feasibility of repairs (if not initially raised in the pleadings but later in sworn discovery responses) may equally prove to be the death knell of the claim should an agent of the insured later unilaterally repair the hazard without input or knowledge of defense counsel.

Section 407 of the PA Rules of evidence, with limited exception, offers a public policy safe haven for the “party” whom, after an injury, undertakes measures to make sure that the accident would have been less likely to have occurred by making evidence of their “subsequent remedial measures” inadmissible to prove that the party making the repairs was either negligent or engaged in culpable conduct which lead to the harm suffered. However, this safety net provides little meaningful protection for the insured who makes the delayed repair without his counsel’s knowledge after suit is filed and especially after the established defense theme regarding the lack of feasibility as to the pre-accident repair has been made and supported thru expensive expert testimony. (Equally dangerous to the defense may be your counsel’s claims of lack of ownership; lack of his client’s control or when the repairs are made by a third party on your insured’s behalf which may all lead to the waiver of the rules’ superb protections after the insured makes the ill-advised and delayed repair.)

Once the fact finder learns that your insured made post accident repairs that would have prevented the plaintiff’s harm- Pandora’s Box can never be re-closed and your insured’s fate at trial will be sealed. Accordingly, in those cases where no repairs have yet been made to the alleged defect at issue, the insured must be counseled post filing of the complaint not to take any actions (save providing sufficient warnings of the hazard) without the express prior approval of appointed counsel.

Often overlooked in this scenario should be the need to photo document the area prior to the start of any repairs. These are the photos that defense counsel wants to introduce at time of trial. Otherwise, the fact finder will see, either through a sight visit to the scene or through photos entered into evidence at time of trial the way the area at issue appears currently after all of the repairs have been made. Getting the proverbial cat back into the bag once this evidence is shared with the jury makes the public policy protections of the “subsequent remedial repair” rule quite meaningless and rightfully so.

In conclusion, the savvy claims professional is encouraged to make immediate inquiry of his/her insured regarding the state of the alleged defect post accident and to make or participate in suggestd ways to best preserve same from likely claims of spoliation- especially when the opposition has not yet had a chance to inspect the area at issue. All surveillance images must be protected and great care made to document the location of favorable witnesses and employees not only in the moment- but with the eye towards tracking them down two (2)+ years later once the matter transforms itself into litigation. (This is especially essential for the favorable foreign or young student witness who may much more likely than not be very mobile and not tied down to the accident location when future opportunities lie elsewhere outside of the jurisdiction.) Before any repairs are made, at a minimum, photos of the area should be made at the direction of counsel that best depicts the hazard in the light most favorable to your insured. Lastly, before any corrective measures are undertaken by an insured to an alleged defect or hazard after defense counsel and his appointed expert are involved in the defense of the claim, communication is essential between counsel and your insured to make sure that no legal defenses or themes are compromised by the ill-timed subsequent remedial repair in order to take full advantage of the public policy rule against its admissibility at time of trial to prove fault against your well-intentioned insured.

For questions, comments or additional information, please contact Steve Leventhal, Partner in our Insurance Practices Group, at sleventhal@regerlaw.com or via phone at 215.495.6501.