CAROLYN DUVALL v. J.W. NEAL REVOCABLE TRUST; JEFFERSON W. NEAL, D/B/A NEAL MANAGEMENT CO.; AND JEFFERSON W. NEAL, INDIVIDUALLY
Annotate this Case
Download PDF
RENDERED: JULY 20, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000702-MR
CAROLYN DUVALL
APPELLANT
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 99-CI-00016
v.
J.W. NEAL REVOCABLE TRUST;
JEFFERSON W. NEAL,
D/B/A NEAL MANAGEMENT CO.;
AND JEFFERSON W. NEAL,
INDIVIDUALLY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND JOHNSON, JUDGES.
BARBER, JUDGE:
The sole issue on appeal is whether the trial
judge erred in excluding evidence of a subsequent remedial
measure under KRE 407.
Finding no error, we affirm.
The Appellant is Carolyn Duvall (“Duvall”).
On May 16,
1998, while visiting her fiancé at his residence, Duvall was
injured when her left foot slipped through a drainage grate in
the driveway.
Duvall’s fiancé leased the residence from the J.W.
Neal Revocable Trust, which holds title to the property.
filed suit against the Trust, Jefferson W. Neal d/b/a Neal
Duvall
Management Company and Jefferson W. Neal, individually
(collectively, “Neal”).
On January 4, 2000, Neal filed a motion in limine to
exclude evidence from being heard at trial that Neal had had the
separate sections of the drainage grate welded together after
Duvall’s injury.
The trial court granted Neal’s motion,
following a hearing.
Neal.
The jury returned a verdict in favor of
On January 28, 2000, the court entered judgment and
dismissed Duvall’s complaint with prejudice.
On February 2,
2000, Duvall filed a motion for a new trial, notwithstanding the
verdict, on the ground that she should have been allowed to
introduce the subject evidence.
The court denied the motion by
order entered February 22, 2000.
On appeal, Duvall contends that the trial court erred,
as a matter of law, in applying KRE 407 because it construed the
list of exceptions contained in the rule as exhaustive, rather
than illustrative.
KRE 407 provides:
When, after an event, measures are taken
which, if taken previously, would have made
an injury or harm allegedly caused by the
event less likely to occur, evidence of the
subsequent measures is not admissible to
prove negligence in connection with the
event. This rule does not require the
exclusion of evidence of subsequent measures
in products liability cases or when offered
for another purpose, such as proving
ownership, control, or feasibility of
precautionary measures, if controverted, or
impeachment.
-2-
Having reviewed the trial videotape, we do not believe
that the trial court misconstrued the rule.
Lawson’s (Robert G. Lawson,
The court noted
The Kentucky Evidence Law Handbook,
(3rd Ed. 1993) (which Duvall cites in her brief on appeal), but
simply did not see that any of the exceptions to the rule “fit.”
The court did not refuse to consider a particular exception on
the basis that the exception was not specifically listed in the
rule; rather the court believed this to be a classic postaccident remedial measure.
Duvall also maintains that the evidence should have
been allowed in order to prove a dangerous condition, relying on
L.&.N.R. Co. v. Woodward, 15 Ky. L. Rptr. 445 (1893).
reliance upon Woodward is misplaced.
Duvall’s
In Woodward, evidence of
subsequent measures was admissible for the purpose of proving
when a condition existed.
Testimony for the defendant had shown
that protruding railroad ties were sawed off before the
plaintiff’s accident.
The plaintiff was permitted to show that
the ties were sawed off after the accident.
The condition of the
premises at the time of Duvall’s injury is not at issue.
Pitasi v. The Stratton Corp., 968 F.2d 1558 (2d Cir.
1992), also relied upon by Duvall, is distinguishable.
In
Pitasi, a ski resort had roped off the top of a trail which had
been closed due to dangerous conditions; the side entrances had
not been roped off.
After the plaintiff was injured, the resort
ordered its employees to place warning signs and ropes across the
side entrances to the trail.
At trial, the primary defense was
-3-
that the risk posed by the trail was so obvious that no warning
signs or ropes were needed.
On appeal, the Court held that the
evidence of remedial measures was admissible to rebut an argument
that the plaintiff was contributorily negligent and to impeach
the defendant’s employees’ testimony that the danger was obvious
and apparent.
Duvall contends that the subsequent “act of welding the
grates would have been offered as evidence of an implicit
admission by the appellees that they recognized that the unwelded
grates posed a danger to the tenant, . . . .”
In other words,
Duvall wanted to use the evidence to prove that Neal maintained a
dangerous condition.
We agree with the trial court that this is
a “classic” subsequent remedial measure excluded under KRE 407.
The policy underlying the general rule [removal of disincentives
to take corrective action] can be easily threatened “if courts
look for ‘other purposes’ for admitting the evidence, without
sensitivity to the fact that the law is intended to be
predominantly exclusionary.”
Lawson, supra at 2.45, 130.
The
trial court did not abuse its discretion in excluding the
evidence.
Goodyear Tire & Rubber Co. v Thompson, Ky., 11 S.W.3d
575, 577 (2000).
We affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas N. Kerrick
Kerrick, Grise, Stivers &
Coyle
Bowling Green, Kentucky
Barton D. Darrell
Paul T. Lawless
Bell, Orr, Ayers & Moore
Bowling Green, Kentucky
-4-
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
