Morrison Mahoney Partner Grace Garcia recently won a jury trial in Middlesex Superior Court. The plaintiff had alleged she was injured when, after shopping at the defendant’s grocery store, which had just opened ten days before, she fell off a curb that separated the stores’ sidewalk and parking lot. The plaintiff claimed that she was injured as the curb was not well marked, especially due to the fact that in other areas of the store there was no curb, but rather the sidewalk sloped into the parking lot.

At issue in the case was that just after the accident, the grocery store installed bollards in the exact area where the plaintiff fell, which effectively directed people to use a ramp to go to the parking area, rather than step off the curb where the plaintiff fell. The plaintiff argued that the installation of the bollards after the accident came into evidence for two reasons: (1) in the original building drawings, it showed that the grocery store intended to have the bollards installed in the spot the plaintiff fell, and thus their absence showed that the store opened prior to having all safety measures in place; and (2) the evidence of the installation of the bollards showed that the grocery store had notice of the availability of the safety measure, and thus the evidence came in even if the court considered them a subsequent remedial measure.

Grace argued that the plaintiff neither took the appropriate discovery nor had an expert with regard to building plans or safety and, as such, the subsequent remedial measure needed to be excluded by law. After giving the plaintiff extra time to get information regarding the original building drawings, the judge excluded the evidence. The focus of the trial became the surveillance video of the accident.