Esposito et al v SDB Investments, Inc.

Filing 31

ORDER denying 17 Motion for a View; granting 19 Motion in Limine to Exclude Evidence of Subsequent Remedial Measures. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gary Esposito and Dawn Esposito
v.

Civil No. 11-cv-402-JL
Opinion No. 2012 DNH 113

SDB Investments, Inc.
MEMORANDUM ORDER
Plaintiff Gary Esposito was looking forward to a relaxing
week vacationing with family and friends at the Georges Mills
Cottages & Lodging on Otter Pond in Georges Mills, New Hampshire.
Any expectation he had of relaxing, though, was crushed mere
hours into his stay, when he took a nighttime tumble over a rock
in an unlit pathway and ruptured his quadriceps tendon.

Esposito

and his wife have brought suit against the owner and operator of
the cottages, SDB Investments, Inc., asserting claims for
negligence and loss of consortium.

Specifically, plaintiffs

allege that SDB failed to exercise reasonable care in maintaining
the pathways and outside lighting on the premises.

SDB denies

those allegations and claims that Esposito’s own negligence
caused his fall.

This court has subject-matter jurisdiction

under 28 U.S.C. § 1332(a)(1) (diversity).
The parties have each filed a motion in limine in advance of
the upcoming trial.

See L.R. 16.2(b)(3).

The plaintiffs have

requested a view of the premises where Esposito fell.

SDB, in

turn, has moved to exclude evidence of its subsequent removal of
the rock Esposito tripped on, as well as evidence of other
remedial measures it took after the fall.

After reviewing the

parties’ submissions, this court rules on the motions in limine
as set forth below.
I.

View
The plaintiffs have moved for a jury view of the premises on

which Esposito fell.

They argue that a view is necessary in this

case to assist the jury in evaluating a number of disputed
issues, including whether:
•

the Georges Mills Cottages & Lodging is a rustic location,
such that Esposito should have expected rocks in the
pathways;

•

the existing lighting sufficiently illuminates the area
where Esposito fell;

•

it would have been a “good idea” for SDB to install a
motion-sensitive light in that area;

•

the fall could have been prevented if Esposito was carrying
a flashlight; and

•

Esposito used the most reasonable pathway on the night of
his fall.

None of these reasons justify a view in this case.
Whether to permit a jury view “is entrusted to the sound
discretion of the trial court.”
F.3d 233, 236 (1st Cir. 1997).

United States v. Crochiere, 129
“In making this determination,

the court may consider such factors as the orderliness of the
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trial, whether the jury would be confused or misled, whether it
would be time-consuming or logistically difficult, and whether
cross-examination had been permitted regarding the details of the
scene.”

Id.

In addition, the court may consider whether “there

is sufficient evidence describing the scene in the form of
testimony, diagrams, or photographs.”

Id.

Applying these factors, the court does not believe a view is
warranted.

First, although the court is sympathetic to the idea

that the jury could benefit from seeing the lighting around the
area of Esposito’s fall, it would be necessary to conduct the
view at around 9:30 p.m. at night--the time of the fall--in order
to ensure that the jury views the lighting in a condition most
similar to its condition at the time of the incident.

Plaintiffs

have not requested a nighttime view, though, and in any event the
burdens on the jurors and court personnel attendant to conducting
such a view so late at night counsel against allowing one here.
Second, in light of those burdens, plaintiffs have not
persuasively explained why the lighting around the area where
Esposito fell, as well as the rusticity of the cottages, cannot
be conveyed via photographs or video of the area.

Such visual

evidence, in conjunction with the parties’ expected testimony and
cross-examination regarding both the lighting and the bucolic
(or, as the case may be, not-so-bucolic) nature of the cottages’

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lakeside setting, should be sufficient to inform the jury
regarding these issues.
Third and finally, as depicted in photographs SDB submitted
with its objection to the plaintiffs’ motion, the present
appearance of the area where Esposito fell bears only a passing
resemblance to its appearance on the date of his fall.

Among

other things, the rock over which Esposito stumbled has been
removed, and the area has been landscaped to clearly delineate
the pathway in question.

Both those changes arguably affect the

purported rusticity of the location, the reasonableness of
Esposito’s choice of path, and other issues pertinent to the
jury’s evaluation of the parties’ positions.

Even if the court

were to give the jury a limiting instruction, these changes could
potentially confuse or mislead the jury about the appearance of
the pathway and the surrounding area on the day of the fall.
That alone provides sufficient grounds for denying plaintiffs’
motion.1

Cf. Boucher v. CVS/Pharmacy, Inc., 822 F. Supp. 2d 98,

102-103 (D.N.H. 2011) (excluding photographs of scene of
plaintiff’s fall because photographs “depict[ed] materially

1

As discussed in the following section, moreover, SDB’s
changes to the area constitute subsequent remedial measures that
are ordinarily inadmissible under Federal Rule of Evidence 407.
There appears to be no clear way to visit the scene of the fall
without allowing the jury to observe these changes, providing
additional justification for denying plaintiffs’ motion.
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different conditions than those that existed on the day of the
incident,” thereby creating “a substantial risk that the jury
would become confused in thinking that those pictures represented
the [scene] on the day Boucher fell”).

Plaintiffs’ motion for a

view is denied.
II.

Subsequent changes to the premises
SDB has moved to exclude evidence of subsequent remedial

measures it took.

Specifically, it seeks to exclude evidence

that it (a) removed the rock over which Esposito stumbled; (b)
installed border stones along the pathway involved in order to
“better define” that pathway; and (c) placed solar-powered
landscape lights near the rock (prior to its removal, of course)
to illuminate it.

SDB argues that such evidence must be excluded

under Federal Rule of Evidence 407, which provides:
When measures are taken that would have made an earlier
injury or harm less likely to occur, evidence of the
subsequent measures is not admissible to prove:
•
•
•
•

negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.

But the court may admit this evidence for another
purpose, such as impeachment or--if disputed--proving
ownership, control, or the feasibility of precautionary
measures.
The court agrees that evidence of SDB’s alterations to the
pathway is inadmissible under Rule 407.
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Plaintiffs do not

dispute that those alterations would have made Esposito’s injury
“less likely to occur,” and are therefore inadmissible to prove
SDB’s neglience.

They argue instead that evidence of those

alterations may be admitted to prove that the alterations were
feasible.

The rule itself, however, plainly indicates that

evidence of subsequent measures is admissible to prove
feasibility only if the feasibility of such measures “is
disputed.”

In a June 21, 2012 conference call with the court,

and in previous court filings, SDB’s counsel represented that SDB
did not intend to dispute the feasibility of these measures at
trial.

As plaintiffs have identified no other permissible

purpose for which evidence of SDB’s alterations to the property
may be admitted, SDB’s motion to exclude this evidence is
granted.2
III. Conclusion
For the reasons set forth above, plaintiffs’ motion for a
view3 is DENIED.

SDB’s motion to exclude evidence of subsequent

remedial measures4 is GRANTED.

2

This ruling is without prejudice to plaintiffs seeking to
admit such evidence should SDB, contrary to its representation,
place the feasibility of such measures in dispute at trial.
3

Document no. 17.

4

Document no. 19.
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SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

July 2, 2012

Richard T. Meehan, Esq.
Stephen E. Borofsky, Esq.
Gary M. Burt, Esq.

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