The plaintiff, Kathleen Tilden, was walking into the dining area of Tommy’s, a restaurant in New Orleans, when she slipped and fell. As a result of the fall, Mrs. Tilden allegedly suffered injuries to her neck, shoulder, and back. Mrs. Tilden and her husband filed suit against the restaurant alleging that she fell as a result of a wet surface. At trial, the court first excluded testimony from the plaintiffs’ witnesses who claimed that the restaurant placed rugs onto the floor after the accident, on the grounds that the placement of the rugs constituted a subsequent remedial measure. The plaintiffs attempted to argue that an exception to that general rule should apply, allowing such evidence to be admitted to attack the restaurant owner’s credibility. The court determined that the owner’s previous testimony did not deny use of the rugs; therefore a credibility attack on those grounds was baseless.
During the trial, the plaintiffs produced a number of witnesses to Mrs. Tilden’s fall. None of the witnesses, however, could identify any particular defect or condition of the floor that caused her to fall. Although the plaintiffs generally asserted that the floor was slippery, none of the witnesses testified that they had felt any moisture on the floor or had seen any evidence that Mrs. Tilden’s clothes were wet after the fall. The jury concluded that no condition caused Mrs. Tilden’s fall, and therefore assessed no fault to the restaurant. Mrs. Tilden filed an appeal, Tilden v. Blanca.
On appeal, the plaintiffs asserted that the trial court erred in excluding evidence regarding the placement of additional rugs after the accident. The plaintiffs argued that the evidence was admissible to (a) attack the restaurant owner’s credibility, and (b) as an admissible remedial measure. The Louisiana Fourth Circuit Court of Appeal disagreed. Under Louisiana law, a subsequent remedial measure, such as the restaurant’s use of rugs on the floor after an accident, cannot be admitted into evidence to prove negligence or culpable conduct. Instead, it can be used for a number of limited purposes, one of which is to attack a witnesses’ credibility. The Fourth Circuit agreed with the trial court, and found no credibility issue with the owner’s prior testimony. The court next determined that there was no evidence that the restaurant had used the rugs until after the fall, rendering evidence of their use inadmissible as a subsequent remedial measure.
Finally, the court determined that even if the trial court erred in excluding witness testimony on the rugs, the plaintiffs still failed to meet their burden under Louisiana Revised Statute 9:2800.6(B) (pdf) because none of plaintiffs’ witnesses could identify or produce evidence of the cause of Mrs. Tilden’s fall.
Take-Away: In Louisiana, subsequent remedial measures are inadmissible as evidence on behalf of the plaintiff, save for a few, limited exceptions. In addition, a plaintiff must present some evidence to support a cause of a slip and fall claim brought under Louisiana Revised Statute 9:2800.6(B).
This article was co-authored by Jon Phelps, an associate at Irwin Fritchie Urquhart & Moore LLC.