Illinois courts have held that evidence of subsequent repairs is not admissible for the purpose of showing prior negligence, but is admissible for the purpose of showing who had control of the premises on which the injury occurred when control is an issue. (Kellems v. Schiele, 297 Ill. App. 388, 17 N.E.2d 604 (1938)). If properly admissible for one of the exceptions noted above, the court may admit evidence for the purpose of showing control under a limiting instruction which warns the jury not to consider the evidence for the purpose of the issue of negligence. (Dallas v. Granite City Steel Co., 64 Ill. App.2d 409, 211 N.E.2d 907 (1965)). The admission of evidence of subsequent repairs to show control is an exception to the general rule. See, Seipp v. Chicago Transit Authority, 299 NE 2d 330 (Ill. Ct. App. 1973)

In Dallas v. Granite City Steel Co., 211 NE 2d 907 (Ill. Ct. App. 1965), the court noted that Defendant was correct in its contention that evidence of what was done subsequent to the date of the accident in question was not admissible as proof of defendant’s negligence, but that does not affect its admissibility for the purpose for which the evidence was offered, in this case proving the cost of the subsequent remedial measure to show feasibility. In Eizerman v. Behn, 9 Ill. App.2d 263, at 279, 132 NE2d 788, the Appellate Court, First District, said: “It is a well settled rule of law that evidence which is competent for one purpose does not become incompetent because the jury might improperly consider it in some other capacity for which it could not properly be admitted. The opponent of the evidence may, if he so wishes, ask for an instruction confining the evidence to its legitimate sphere; and if he fails to so act, he is deemed to have waived any objection he may have.”

In, Demos v. Ferris-Shell Oil Co., 740 NE 2d 9 (Ill. Ct. App. 2000), the court declined to review whether evidence of defendant’s subsequent remedial measure was reversible error but stated, “Subsequent remedial measures may be admitted into evidence to show ownership or control where disputed by the defendant, to prove feasibility of precautionary measures where disputed by the defendant and for impeachment purposes.” Demos at 19 quoting (Herzog v. Lexington Township, 167 Ill.2d 288, 300, 212 Ill.Dec. 581, 657 N.E.2d 926, 932 (1995)). 

The Illinois Supreme Court, in Herzog v. Lexington Tp., set out the standard for the admission of evidence of subsequent remedial measures. 657 NE 2d 926 (Ill Sup. Ct. 1995). Although evidence of subsequent remedial measures is not admissible to prove prior negligence, such evidence may be admissible for other purposes. For example, evidence of subsequent remedial measures may be admissible for the purpose of proving ownership or control of property where disputed by the defendant. Id. See also, Schultz v. Richie, 148 Ill.App.3d 903, 910, 102 Ill.Dec. 289, 499 N.E.2d 1069(1986); Coshenet v. Holub , 80 Ill.App.3d 430, 431, 35 Ill. Dec. 733, 399 N.E.2d 1022(1980)).

The court in Coshenet explained that where a single defendant owned or rented a space, there was no dispute as to control. “The Illinois cases involving control and subsequent repairs deal with a building with either multiple tenants or common areas (see Gula v. Gawel , 71 Ill. App.2d 174, 218 N.E.2d 42 (1966); Campagna v. Cozzi, 59 Ill. App.2d 208, 207 N.E.2d 739(1965)), in which there genuinely existed a dispute as to who was required to make repairs and who controlled the area.” Coshenet at 432. Evidence of subsequent repairs is admissible to show who controlled the premises when control is an issue. Id. See also, Campagna v. Cozzi, 59 Ill. App.2d 208, 207 N.E.2d 739(1965); Kuhn v. Illinois Central R.R. Co., 111 Ill. App. 323 (1903).

 Such evidence may also be admissible for the purpose of proving feasibility of precautionary measures where disputed by the defendant. See Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 319, 281 N.E.2d 749 (1972)(products liability); Lewis v. Cotton Belt Route—St. Louis Southwestern Ry. Co., 217 Ill. App.3d 94, 159 Ill.Dec. 995, 576 N.E.2d 918 (1991)(feasibility of spotter for crane operation).

Illinois has long recognized that subsequent remedial measures may also be used for impeachment purposes. (See City of Taylorville v. Stafford, 196 Ill. 288, 63933*933 N.E. 624 (1902)).

The Herzog court discussed the use of evidence of subsequent remedial measures for impeachment purposes. Herzog, 57 NE 2d 926. “Where the impeachment value rests on inferences other than prior negligence, such evidence may be admitted where its probative value outweighs the prejudice to defendant.” Id.  

The Illinois Supreme Court first recognized that evidence of subsequent remedial measures may be admissible for the purpose of impeachment in City of Taylorville v. Stafford, 196 Ill. 288, 63 N.E. 624(1902). In that case, plaintiff was injured when she stumbled on a stake jutting up from a walkway. Defendant introduced evidence of a measurement of the stake taken after the accident that differed from plaintiff’s measurement. The Supreme Court found that plaintiff was properly permitted to attack defendant’s testimony with evidence that the difference in defendant’s measurement was due to defendant’s subsequent repair of the walkway. Stafford, 196 Ill. at 290-91, 63 N.E. 624.

Similarly, the court in Herzog holds that “where the defendant goes beyond stating that the original condition was safe or adequate, and attempts to make exaggerated claims that the condition was the “safest possible,” fairness may require that conduct inconsistent with these claims be admitted.” Id. See alsoMuzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir.1985)(allowing impeachment of gun manufacturer with evidence of subsequent changes to safety mechanism where defendant repeatedly stated that mechanism was “safest” possible).) In such a situation, the defendant has gone beyond simply stating that he was not negligent prior to the accident and claimed that no greater care was possible.  The court in Herzog recognized that in situations where the defendant has claimed that no greater care was possible, “any subsequent remedial measure taken by the defendant is directly impeaching of this claim without an inference of prior negligence.” Id.  See also Lewis, 217 Ill.App.3d 94, 159 Ill.Dec. 995, 576 N.E.2d 918 (allowing impeachment of defendant’s witness who claimed that placing spotter was not “feasible” with evidence that a spotter was used later the same day).

 

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