Blight v. Mercy, No. 498-7-12 Wncv (Teachout, J., June 17, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 498-7-12 Wncv

Donna Blight
      Plaintiff

           v.

Jason Mercy and Liza Mercy
      Defendants

                                                                   ENTRY

       Defendants made repairs to the steps on which Plaintiff allegedly fell after the fall.
Defendants have filed a motion in limine seeking to exclude at trial evidence of those repairs as a
subsequent remedial measure. V.R.E. 407. Plaintiff opposes the motion, arguing that
Defendants have taken the position that repairing the steps was too expensive, i.e., not feasible.

        Rule 407 allows evidence of subsequent remedial measures for reasons other than to
prove negligence, including to show the feasibility of a repair actually undertaken. However, the
issue of feasibility is not a legitimate “other reason” unless it is genuinely in dispute. See David
P. Leonard, The New Wigmore: A Treatise on Evidence: Selected Rules of Limited
Admissibility § 2.8.1 (“[I]n the absence of a clear concession, the court must determine whether
the parties truly have a dispute. The court must exercise caution so as to avoid allowing the
subsequent repair evidence when the offering party is essentially manufacturing an issue solely
to waft the subsequent repair evidence before the jury.” (footnote omitted)).

        Defendants represent that they do “not plan on making the claim that the repairs
undertaken by [Mr. Mercy] were not feasible.” Defendants’ Motion in Limine 2 (filed May 26,
2015). Plaintiff has not identified a reason to admit the evidence other than to prove negligence.
On this basis, evidence of the subsequent repair is within the scope of Rule 407. That
Defendants may have believed that they could not afford to make certain repairs at some point is
insufficient to show admissibility. The question is whether Defendants will take the position that
the sort of repair actually undertaken would have been unreasonably expensive (infeasible).
They say that they will not.

           Defendants’ motion in limine is granted.

           Dated at Montpelier, Vermont this ____ day of June 2015.


                                                                                _____________________________
                                                                                Mary Miles Teachout,
                                                                                Superior Judge
