Plaintiff Pauline Jelken fell in a puddle of water in the lobby of the defendant’s Public Storage facility. After she fell, an employee mopped the puddle and placed a caution sign on the floor. Plaintiff sued Public Storage for her injuries suffered from the fall. The issue in Luciano v. Public Storage, 2025 N.J. Super. Unpub. LEXIS 383 (App. Div. Mar. 13, 2025) was whether the trial court judge properly barred Jelken from introducing photographs of the post-accident measures undertaken after Jelken fell, specifically the mopping of the floor and the placing of the caution sign.
On July 4, 2018, Jelken went to defendant Public Storage’s facility with her friend Arlene Castello to retrieve items she had stored there. It rained that day and she slipped and fell in a puddle of water in the lobby of the premises. Jelken reported her fall to the defendant’s employee. Thereafter, an employee mopped the puddle and placed a caution sign on the floor.
Jelken filed a personal injury lawsuit for injuries she suffered in her fall. The case proceeded to trial and, among other witnesses, the defense presented a forensic engineering expert, Dr. David Behnken, to testify as to the condition of the floor.
Prior to trial, the defense made two evidentiary motions, ruled upon by the trial court, one of which will be discussed in this blog article. One of the motions concerned post-accident photos that showed the floor being mopped and a caution sign placed at the scene of the fall. The defendant sought to bar them from being introduced into evidence at the trial. The trial court judge granted that motion.
The trial court judge asked Jelken’s attorney to state the basis for introducing this evidence. Jelken’s attorney stated that he intended to use the photographs to demonstrate Jelken “got out of the facility safely.” The trial court judge ruled that the post-accident photographs were inadmissible under the evidentiary rule, N.J.R.E. 407, which barred the introduction of evidence of subsequent remedial measures.
The judge reasoned that the photos went more to the remedial measures that were taken by the defendant after the accident. While pictures of the condition of the floor at the time of the accident would be admissible, the judge found that the mopping and pictures with the signage around it was not the condition of the floor at the time of the accident and barred their admission at trial.
At trial, Jelken’s attorney sought to revisit this ruling after defense counsel gave his opening statement. During the opening statement, the defense counsel argued that the floor was slip resistant and that you could pour all the water you want on the floor and you could not slip. Jelken’s attorney made the argument that defendant sought to portray the floor as slip proof and contended that “the photographs demonstrating defendant’s employee mopped the floor and placed a caution sign refuted the floor’s safety.”
The judge restated his pre-trial ruling that the post-accident photographs constituted inadmissible subsequent remedial measures, precluded under N.J.R.E. 407. The judge further commented that Jelken had the opportunity to call an expert in the matter to indicate that the floor was not slip proof. The judge also barred Jelken’s attorney from using the photographs of defendant’s post-accident remedial measures to cross-examine defendant’s engineering expert.
After hearing all of the testimony, the jury found that plaintiff had failed to prove defendant was negligent and found for defendant. Jelken filed a motion for a new trial based upon the court’s evidentiary rulings. That motion was denied and this appeal ensued.
On appeal, Jelken argued that the judge made a mistake in excluding evidence of defendant’s post-accident safety measures. In considering this argument, the Appellate Division noted that: “while evidence of safety measures taken after an accident may tend to prove or disprove a fact of consequence, New Jersey has a clear and longstanding public policy favoring the immunization of remedial measures from negative inferences.”
The Court explained that, pursuant to this rule of evidence, evidence of remedial measures taken after an event were not admissible to prove that the event was caused by negligence or culpable contact. However, evidence of subsequent remedial conduct may be admitted as to other issues such as to establish control over the instrumentality causing the injury, to show defendant’s customary standard of care, to prove the condition existed at the time of the accident, to show that a feasible alternative for avoiding the danger existed at the time, or to attack the credibility of a witness.
During the appeal, plaintiff argued that the photographs were relevant to show that plaintiff got out of the facility safely, to show the floor was slippery, and to impeach defendant’s engineering expert who testified the floor was highly slip resistant.
The Appellate Division found that the trial court judge did not abuse his discretion in precluding evidence of the defendant’s post-accident conduct under N.J.R.E. 407. The photographs, showing the defendant’s employee mopping a puddle and placing a caution sign were changes and repairs made subsequent to the accident, were precautions taken subsequently to prevent recurrence of an injury and were not admissible as showing negligence or as amounting to an admission of negligence.
Hence, the Court found that absent a proffer of the photographs to prove some other fact in issue, the evidence of subsequent remedial measures could not be used to show negligence.
The Appellate Division also rejected the argument that the photographs were required to prove Jelken exited defendant’s facility safely. Both plaintiff and her friend who accompanied her testified that they left the facility without further incident. While photographs showing the condition of the floor at the time of the fall might be relevant to plaintiff’s negligence claim, photographs of the floor after defendant’s employee took action constituted evidence of subsequent remedial measures which were properly precluded under this rule of evidence.
Plaintiff further argued that she intended to use the photographs of defendant’s post-accident conduct to prove the floor was slippery. The Appellate Division found that the best evidence in support of this contention was the testimony proffered by plaintiff and her friend during the trial.
The Appellate Division further rejected the argument that the evidence of defendant’s subsequent remedial measures should be admissible to impeach defendant’s engineering expert. During direct testimony, the engineering expert was never questioned as to defendant’s post-accident conduct. During cross-examination, plaintiff’s attorney hypothetically asked the witness if he had been at defendant’s premises at the time of the fall, whether he would have placed a sign warning people to be careful. He testified that he would not have directed the placement of such a sign. Because Plaintiff’s counsel, not Defendant’s counsel brought up the issue of placement of the sign, the post-accident photos showing the sign could not be used to impeach the expert’s testimony.
Thus, the Appellate Division ruled that this evidentiary ruling was proper by the trial court judge. The Court found that the denial of Jelken’s new trial motion was not a miscarriage of justice under the law and affirmed the trial court’s decision. Accordingly, the jury verdict in favor of the defendant was upheld.
