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Yardman v. San Juan Downs Inc.8/23/1995
e jury, we find no impropriety in the trial court's granting of Plaintiff's requested jury instruction which advised the jury that whether a party is insured should have no bearing on the verdict which is rendered. Cf. (where subject of insurance has been brought to the attention of the jury, the party whose coverage has been disclosed may request instruction admonishing jury that existence of insurance has no bearing on issue of liability or the amount, if any, of liability).
18. In the instant case, Plaintiff also requested that a modified form of a jury instruction based on SCRA 13-208 be given so as to contain an admonition that the jury should not concern itself with the "tax consequences" of its verdict. Over Defendants' objection, the trial court gave this instruction. Defendants argue that the instruction on taxes was not warranted and had the effect of misleading the jury and injecting a false issue into the case. We disagree. On voir dire, one of the prospective jurors voiced concern about the effect an award of damages against the County might have on taxpayers in general. Although the juror was excused for cause, considering that the statement occurred within the hearing of other panel members, the trial court could properly conclude that the instruction was necessary in order to neutralize the effect of such comments.
2. Admission of Remedial and Opinion Evidence
(a) Remedial Action
19. Plaintiff presented evidence indicating that at the time of the accident, the race track had a path across one end of the infield leading to the track. The path was used during races to lead the horses from the barn and the paddock area. During races, the opening of the track railing was closed by installing a section of railing.
20. Moments before Plaintiff's accident, the horse he was riding veered toward the rail near the place where the infield path met the track. Both Plaintiff and Defendants presented testimony concerning the location and use of the infield path and the effect, if any, this had upon the horse ridden by Plaintiff at the time of his accident. Plaintiff contended that although at race time access to the path was blocked, nevertheless, the location of the path was a factor which caused his mount to suddenly swerve toward the place where the horses were accustomed to returning to the stable area. During Defendants' case-in-chief, Hank Demoney, the County's track manager, testified that he did not believe the infield path or gap constituted a dangerous situation. Over Defendants' objection, the trial court permitted Plaintiff to cross-examine Demoney concerning subsequent remedial measures made by Defendants involving the relocation of the path.
21. SCRA 1986, 11-407 (Repl. 1994) provides:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.
Plaintiff asserts that evidence of subsequent changes in the track was admissible, among other things, to impeach Demoney concerning his belief that the path did not present a hazard.
22. One of the basic purposes of SCRA 11-407 is to encourage a party to initiate and implement steps to promote safety by removing the disincentive to make repairs or modifications following an accident, which would otherwise exist if the accident victim could readily
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