Client Alert: Evidence of Shopping Center’s Hiring of Security Service Excluded as Subsequent Remedial Measure in Negligence Action

On July 31, 2014, the California Court of Appeal, Fourth Appellate District, in McIntyre v. The Colonies-Pacific, LLC, upheld a trial court’s exclusion of evidence under Evidence Code Section 1151. Defendant Colonies owned a shopping center in Upland, California. The common areas of the shopping center were under Defendant’s exclusive control, but maintenance expenses were chargeable to the tenants on a pro rata basis. McIntyre owned a jewelry business in Defendant’s shopping center. After three incidents of robbery in the shopping center between January and May of 2006, McIntyre expressed concern of lack of security to an employee of Defendant’s property management company, but was told security was not budgeted for and under the CC&R’s.┬áDefendant could not charge tenants for security without the approval of two anchor tenants. On August 16, 2006, McIntyre took his then 14-year old daughter to work with him. Shortly after the store was opened, three men entered, severely pistol whipped McIntyre, tied up his daughter, held her at gun point, and robbed the store. After this incident, the Defendant shopping center owner hired a security service to provide unarmed patrol to the common areas of the shopping center.

The McIntyres sued the Defendant for negligence and premises liability. At the outset of trial, Defendant brought a motion in limine under Evidence Code section 1151 to exclude evidence of subsequent remedial measures. Plaintiffs, the McIntyres, argued this was inapplicable as they were not using the evidence to show Defendant was negligent in breaching its duty of care, but rather to show the lack of security patrol was the cause of the robbery. The trial court disagreed, and in granting Defendant’s motion held, “. . .it really is evidence that comes under the category of subsequent remedial conduct. I will also comment that I think it’s perhaps a distinction only a lawyer could appreciate as to proving causation, which of course is an element in liability . . . It seems to me no matter how you phrase that evidence, in point of fact, the evidence is going to have an impact that . . . [section] 1151 is designed to preclude.” The jury returned a special verdict finding Defendant negligent, but determined its conduct was not a substantial factor in causing Plaintiffs’ damages. Judgment was entered for Defendant in March of 2012. Plaintiffs appealed the trial court’s evidentiary ruling regarding evidence of Defendant hiring a security service after Plaintiffs’ store robbery.

On appeal, the Court reviewed section 1151 and looked to the legislative history as the term “negligence” was not specifically defined in the code section itself. The Court also reviewed the Law Revision Commission Comments which cite to the California Supreme Court opinion in Helling v. Schindler (1904) 145 Cal. 303. In Helling, plaintiff’s hands were cut by what he contended were dull knives and a loose belt on a machine used in the course of his employment. Plaintiff obtained a judgment and defendant employer appealed, contending the trial court erred by admitting evidence that after the accident, the knives were sharpened and the belt was tightened. The Supreme Court reversed, concluding the evidence was inadmissible to prove negligence, including the disputed element of causation.

The McIntyres did not rely on Helling, but instead on a string of opinions discussing exceptions to the general rule of inadmissibility regarding susequent remedial activities. The Court of Appeal found these cases were not applicable to the facts of the case at hand: the McIntyres’ case was akin to Helling, as the purpose of the subsequent remedial measures evidence was to show there was a “negligent condition” of the shopping center that caused the armed robbery. Further, the Court held that whether the issue was bolstered by due care or causation elements of a negligence claim, “admission of evidence that Defendant subsequently hired a security service, which improved safety, would discourage others similarly situated from undertaking such measures, an outcome that would thwart public policy.”

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August 7, 2014