Hindsight Is Perfect

Everyone has heard the expression that "hindsight is 20/20." We typically hear this expression after learning that we didn't do something we should have, when we finally put all the clues together and figure out that the opportunity we passed on turned out to be great for someone else.

The law recognizes this principle albeit in a slightly different way. We lawyers gave it the catch name "§90.407 Fla. Stat." but like to refer to it as the "subsequent remedial remedy" rule. It's part of the evidence code and it provides in pertinent part: "Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event."

Oh, boy, legal speak, you say, can you tell me more? Sure, I can. Essentially, if you end up in a lawsuit over the fact that someone slipped on a banana peel in your grocery store (I never understood how it is that popular culture made the banana peel the archetype for slippery items) and you then decide to put up a warning sign at the banana display that reads "Danger - bananas- slipping hazard" and a mesh wiring around the bananas to keep them from falling on he floor, the fact that you took these measures to prevent others from slipping cannot be admitted as evidence against you to prove that you caused the first person to slip and sue you.

Purpose of the rule- to not punish those who choose to correct a problem and encourage them to take such action to make sure no one else gets hurt under the same or similar circumstances. Acknowleding that hindsight is perfect and that the banana sign and mesh should have probably been there in the first place, we are not going to punish the grocery store owner by allowing evidence of his subsequent remedial measure to be used against him in the lawsuit.

Now, would I be doing my job if I didn't tell you that there was an exception to this rule? Of course not!! You CAN introduce evidence of the banana sign and the mesh if you need to introduce it for a limited set of reasons- to prove: 1) ownership of the banana peel or the grocery store; 2) control over the banana peel or grocery store; 3) feasibility of intsalling the sign and mesh; or 4) to impeach the credibility of a witness. Understand that these circumstances are pretty limited and are not usually present in lawsuits.

So, now that you are better informed, feel free to go out into the world and fix everything!!!